150-Year Anniversary of the Adoption of the Constitution of the North German Confederation

The North German Confederation (Norddeutscher Bund) is generally considered the first modern German Federation. Before that time, there were 39 different sovereign states, varying in size, that were loosely associated in the German Confederation (Deutscher Bund). The North German Federation came into existence with the adoption of the Constitution of the North German Confederation by the German Reichstag (parliament) on April 16, 1867. It was succeeded by the German Empire in 1871. Even though it only lasted for four years, the North German Confederation is of particular interest, both because the German Empire and its constitution were modeled after it, and because it provides an opportunity to see how a federal state is created, which offers interesting comparisons to the United States.

Despite the name “confederation,” the North German Confederation was, in fact, a true federation. In a confederation, the states are united in an alliance with a central power, but remain sovereign with regard to all internal and external affairs. In a federation, on the other hand, they transfer parts of their sovereignty to the central power, so some powers remain reserved to the individual states and cannot be exercised by the central authority.

Historical Background

The demise of the Holy Roman Empire of the German Nation (HRE) in 1806 left Germany a patchwork of many individual sovereign states. After the Napoleonic Wars, the German Confederation was founded in 1815 as a loose alliance between 39 sovereign German states. The German Confederation was dominated by the Austrian Empire and Prussia, the two largest states. Prussia wanted to extend its power, which could only happen at the expense of Austria. In 1866, they fought each other in the Austro-Prussian War (Seven Weeks War) and Prussia won. In the Peace Treaty of Prague, Austria formally agreed to the termination of the German Confederation. Germany was to be reorganized without the participation of the Austrian Empire and the southern states were declared independent. (Treaty of Prague, art. IV). There was to be a northern and a southern alliance, divided by the river Main. The future relationship between these two alliances was to be determined at a later date. (Id.) The northern alliance became the North German Confederation, whereas the southern alliance never materialized.

Five days before the Peace Treaty of Prague was concluded, the so-called “August Treaty“ (Bündnisvertrag Preußens mit den Norddeutschen Staaten) was signed at the initiative of Prussia. It created the North German Confederation as a military alliance between Prussia and 15 other sovereign states located in the north of Germany (“August Alliance (August Bündnis)”). The military was placed under the command of the Prussian King William I. (August Treaty, art. 4). Soon afterward, the remaining northern states joined and the number of alliance members increased to 23. The dominance and size of Prussia (it made up four-fifths of the territory and had three-fifths of the population) left the small northern states no choice but to join the alliance. The August Treaty provided that the alliance would terminate either after one year had elapsed or when a federal state was formed. (Id. art. 6). It stated that the goals of the alliance were to be secured by the adoption of a federal constitution on the basis of the Prussian draft of June, 10, 1866. The constitution was to be passed by the governments of the alliance members in cooperation with a parliament (Reichstag) elected by the male population of the participating states. (Id. art. 2).

The states prepared the election of the parliament and convened in Berlin to debate the draft constitution submitted by Otto von Bismarck, the Prussian chief minister. They adopted the draft after three sessions and authorized the crown of Prussia to represent the states in relations with the parliament. In his speech in parliament, Bismarck encouraged the members by saying: “Sit Germany, so to speak, in the saddle—it will know how to ride!” The Constitution of the North German Confederation was adopted by the newly elected parliament after two months of debate and submitted to the legislatures of the states for ratification. Each state individually promulgated the constitution in accordance with their procedures for constitutional amendments and inserted identical provisions that the new constitution would go into effect on July 1, 1867.

Bismarck envisaged the North German Confederation only as a first step to a federation of northern and southern German states, as it was later realized in the German Empire. The Constitution of the North German Confederation remained in force until December 31, 1870 and formed the basis for the Constitution of the German Empire of 1871.

Constitution of the North German Confederation

The Constitution of the North German Confederation consisted of 79 articles. It did not contain a bill of rights and focused instead on the organization and powers of the legislative and the executive branches and on the relationship between the states and the federation.

The Constitution set up a federation and directly conferred certain exclusive powers on it with regard to free movement, residence, and naturalization; commerce and navigation; customs and taxes; weights and measures; coin; banking; copyrights and patents; regulation of railroads and waterways for military purposes and in the interest of general commerce; navigation; postal and telegraph service; mutual recognition and enforcement of judgments; notarization of documents; legislation in the areas of contract law, criminal law, commercial law, bills of exchange, and judicial procedure; and the army, militia, and navy. (Constitution, art. 4). Other powers not delegated remained with the states. Federal laws preempted state laws. (Id. art. 2). Citizens of one state had to be treated the same as native-born citizens of another state. (Id. art. 3).

The legislature consisted of two houses, a Reichstag (parliament) and a Bundesrath (Federal Council). The two bodies had equal rights in the legislative process and every law required joint concurrent majority decisions to be passed. (Id. art. 5, para. 1). The Reichstag was elected for a period of three years by universal and direct suffrage in a secret ballot. All German men over the age of 25 years were eligible to vote. (Id. arts. 20, 24). A quorum of a majority of the members needed to be present to make decisions, which were passed by an absolute majority. (Id. art. 28). The members of the Reichstag were not allowed to draw a salary or other compensation, in order to ensure the “respectability” of those elected. (Id. art. 32).

The Bundesrath was made up of representatives of the individual states, with a total of 43 members. It was chaired by the Federal Chancellor (Bismarck) who was appointed by the Federal Presidency. (Id. art. 15). The number of representatives was the same as in the plenary of the former German Confederation, which meant that Prussia had 17 members. All other states mostly had one representative, with the exception of Saxony, which had four, and Mecklenburg-Schwerin and Braunschweig, which had two each. (Id. art. 6). The members were nominated by the state governments. (Id. art. 7). Decisions were made by a simple majority. The constitution awarded the Federal Presidency the right to cast a tie-breaking vote. (Id. art. 7, para. 2).

The Federal Presidency (executive branch) was permanently awarded to the crown of Prussia. (Id. art. 11).  He represented the North German Confederation externally, was commander in chief of all land and naval forces; he declared war and restored peace; he entered into international agreements; he certified and promulgated laws (although laws also needed the countersignature of the Federal Chancellor to become valid); he appointed officers and had the power of removal; and he assembled and dissolved the Reichstag and the Bundesrath, although the Reichstag could not be dissolved without the concurrence of the Bundesrath. (Id. arts. 12, 24).

No federal judiciary was created. Constitutional disputes between the individual states were settled by the Bundesrath (id. art. 76), an arrangement contrary to the principle of separation of powers.

Parallels and Differences to the United States

The Constitution of the North German Confederation corresponds in many ways to the U.S. Constitution. These similarities were noted by the U.S. Ambassador to the North German Confederation, George Bancroft, who remarked that “ [t]he constitution of North Germany corresponds in so many things with ours that it must have been formed after the closest study of our system, or the same imperfections of government have led the two countries, each for itself, to the discovery and application of similar political principles.”

The relationship between the central government and the states is set up in much the same way in both the United States and the North German Confederation. The central government is granted certain exclusive powers, while the individual states retain powers over affairs that have not been delegated. The list of powers mostly covers the same areas, such as defense, commerce, etc. However, the Constitution of the North German Confederation directly confers these powers, while the U.S. Constitution is sometimes less explicit. Both constitutions award the rights that a native-born citizen of one state has to the citizens of any other state.

In both cases, the legislative branches are composed of two houses with equal rights. The U.S. House of Representatives is similar to the Reichstag, whereas the U.S. Senate corresponds to the Bundesrath. The U.S. Vice President is authorized to cast a tie-breaking vote in the U.S. Senate as was the case with the Federal Presidency in the Bundesrath of the North German Confederation.

However, a striking difference between the United States and the North German Confederation is the de facto hegemony of Prussia. In the U.S. Senate, each state is equally represented by two senators, regardless of their population, whereas Prussia held 17 out of a total of 43 votes in the Bundesrath. The dominance of Prussia in the North German Confederation is also evidenced by the fact that the Constitution was based on the Prussian draft and that the Federal Presidency was permanently awarded to the king of Prussia.

Furthermore, there was no strict separation of powers in the Constitution of the North German Confederation as it is set up in the U.S. Constitution. The Bundesrath exercised not only legislative, but also executive and judiciary branch powers.

Further Reading

The Library of Congress and the Law Library of Congress hold a variety of books on German history and German constitutional history in general, and on the North German Confederation. They include, among others:

• Frotscher, Werner, Verfassungsgeschichte. 2015.
• Feuchtwanger, E. J., Imperial Germany, 1850-1918. 2001.
• Sheehan, James J., German history, 1770-1866. 1989.
• Pollmann, Klaus Erich, Parlamentarismus im Norddeutschen Bund, 1867-1870. 1985.
• Wilhelm, Rolf, Das Verhältnis der süddeutschen Staaten zum Norddeutschen Bund (1867-1870). 1978.
• Der unbekannte deutsche Staat. Der Norddt. Bund 1867-71. 1970.
• Dietrich, Richard (ed.), Europa und der Norddeutsche Bund. 1968.
• Huber, Ernst Rudolf, Deutsche Verfassungsgeschichte seit 1789. 1957.
• Hudson, Richard. The North German Confederation. 1892.
• Martitz, Ferdinand von, Betrachtungen über die Verfassung des Norddeutschen Bundes. 1868.
• Münster-Ledenburg, Georg Herbert, Graf zu, Der Norddeutsche Bund und dessen Uebergang zu einem deutschen Reiche. 1868.
• Römer, R. (Robert), Die Verfassung des Norddeutschen Bundes und die süddeutsche, insbesondere die württembergische Freiheit. 1867.
• North German Confederation, Bundes-gesetzblatt des Norddeutschen Bundes. 1867-70.