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OCR
THE FATHERLAND 7
The absurdity of laws being declared unconstitutional does not
exist-in Germany, because the Bundesrat is the highest judicial
authority. As a rule, few and only the most important judicial
cases come before it, but it does not upset laws as do our courts
by declaring them unconstitutional. Such an action would be
merely repealing the law, and the Bundesrat does not pass laws
merely to repeal them again.
The Will of the People Carried Out in Germany
There is no danger of a law not being in accord with the Ger-
man constitution, because the Bundesrat and Reiehstag have the
power of altering the constitution by majority vote, and any
law passed is of as much effect as any portion of the constitution
and would have the effect of repealing any portion of the consti-
tution with which it was not in accord.
In the United States laws passed by Congress are inferior to
the laws which are embodied in the form of the constitution.
That is, we have two qualities of law, ordinary law and the
super-law of the constitution. And the courts have the power of
scrutinizing the ordinary laws and determining whether they
agree with the super-law or not. Thus the Supreme Court is
the final power in the United States. Its members have life
tenure of office and are appointed by various presidents from
time to time, and though the supreme power in the land, it is
removed at the greatest possible distance from the influence of
the will of the people.
It would appear, indeed, that the American system, had it been
intended to make the ascertainment and carrying out of the will
of the people as difficult and tedious a process as P0S5iblC: Wuld
not have been more successfully designed. The returning of the
members of the lower house from the states as units makes it
impossible for any important third party to exist. There must
always be only two really contending political parties. The will
of the people can only be expressed in the substitution in power
of one political party for the other. Now each political party
represents, certain things. The Democrats stand for free trade,
anti-imperialism and anti-trust conditions. and the Rt‘-IJUl>llC3n5
favor protection, imperialism and trusts.
The) Paradox of American Legislation
In the last election the Democrats won, principally on the anti-
trust issue. The public expressed its will on that point. But in
doing so, it committed itself to free trade and to anti-imperialism
for the time being, because even the Democrats themselves can-
not tell decisively to what issue they owe their power, and they
assume they won on all planks and attempt to carry them all Out-
Now it is likely that the public really prefers high tariff as
that has long been the policy of the country. But it swallows
low tariff temporarily, if such be the case, in order to smash the
trusts. If it desires to return to high tariff, it must relinquish
its anti-trust attitude which it probably does not want to do-
Therefore, under the American system it is almost impossible
for the will of the public to be ascertained on any one subject.
How then can a country effectively govern itself if it cannot find
out itself what its own will is? ‘
But Germany can ascertain almost instantly the will of the
9901116. If the Reichstag and the Bundesrat disagree on a policy,
if the Reichst-ag votes lack of confidence in the DOHCY of the
Imperial Chancellor, he must resign or prevail uP0n ‘he B““de5"3t
to dissolve the Reichstag, which is accomplished by the Kaiser
acting with the sanction of the Bundesrat. Thus the Bundesrat,
through its instruments the Kaiser and Imperial Chanceuof has
the choice of agreeing with the Reichstag or of dissolving it.
If the Bundesrat believes that it expresses the will of the
D‘?0Ple, it dissolves the Reichstag. A new Ckctio“ must '‘he“
be held within sixty days and the Reichstag reconvened within
ninety days. The question upon which it is dissolved becomes
the political issue upon which the Reichstag members stand for
re-election.
The German Way of Obeying the People
The will of the people is thus ascertained within a very short
space of time and the Bundesrat, if defeated by the return of
Reichstag members opposed to its policy, changes its policies and
the members who advocated the defeated policy resign individ-
ually or lose their prestige. The new Reichstag and the Bundes-
rat are then in accord and represent the will of the people on
the question at issue, a condition which can never be achieved
under the American system.
It will be noted that the power to dissolve is not the Kaiser's
power but the Bundesrat's power. The Bundesrat must dissolve
the lower house or agree with it, otherwise there is a deadlock,
a condition which involves such censure of public opinion as to
be unendurable. -
Once the will of the people is ascertained, the Bundesrat proves
a marvelous instrument for carrying it into execution. As stated,
there is no delay due to questions of constitutionality, deranging
commerce and industry in the intolerable manner to which Amer-
ican commerce and industry are subjected by the infinitely
tedious processes of the American courts and the closely tech-
nical attitude of the Supreme Court upon all questions which are
not brought before it in the proper form. Once a law is passed
it is of the same quality as the constitution. No laws are passed
for the purpose of “putting it up to the Supreme Court." No
laws are passed, the execution of which involves political black-
mail, that is the “putting oi the president in a hole” in carrying
them out. No ambiguous laws are passed to "sidestep” official
responsibility, because as the Bundesrat must shoulder the re-
sponsibility of executing the laws it passes, it cannot escape
odium for laws which do not have public approval. There can
be no ambiguity in the laws, for the Bundesrat which passed
the law must certainly know what it means when it comes to be
executed.
Further, there are no delays in passing laws such as are caused
by deadlocks between the American president and a Congress
of different political complexion, for the Kaiser cannot block
legislation and cannot veto it.
In short, in Germany it works. Here it does not.
The Defect in Our Government
The inflexibility of the American system was devised by its
founders under the apprehension that they were wiser than their
successors were to‘ be. Therefore, the constitution which they
framed was made of a higher quality than any laws to be passed
by their successors, except under almost impossible circumstances,
the agreement of the legislatures of two-thirds of the states.
America has ever since been tripping on this stumbling block.
It is time it was kicked out of the way. Why should our early
statesmen take such trouble for us. We are as competent to
govern ourselves as they were. By denying to our laws equal
validity with the ones they framed into a constitution, they assert
that we are not.
But if our constitution were capable of amendment by ma-
jority vote of Congress, and we suffered by such gusts of popu-
lar passion as they feared we would, we would be the sufferers
and not they, but we would have the opportunity of righting our
mistakes as easily as they were made, which is not now the case.
The Bundesrat system may be termed a polyocracy, or a gov-
ernment of the many. Essentially, it is an aristocracy on good
behavior, an aristocracy holding its job at the pleasure of a
democracy. It owes its effectiveness to its unification of the
three functions which are separated in the American government,
and to its power being as great as the power of any body that
went before it.
What We Have Learned From German
Institutions
The principle involved of legislative-executive-judicial unity
in one body has been adopted by the American government in
