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Picture of text of the Basic Law of 1949.
The Basic Law from 1949, in The Bonn Constitution; basic law for the Federal Republic of Germany (1950), https://lccn.loc.gov/55035220. Photo by Eva Dauke.

Anniversary of the German Basic Law – German Constitutions in the Course of Time

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The following is a guest post by Eva Dauke, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress.

Every year, on May 23, Germany celebrates the “Day of the Basic Law.” The Basic Law is Germany’s constitution, which lays out the country’s fundamental rights, among other things.

This year marks the 75th anniversary of the Basic Law. I would like to take advantage of this special day by providing an overview of some of the most important German constitutions from the past: the Constitution of the German Empire, the Weimar Constitution, and the Basic Law.

Constitution of the German Empire of 1849 (Frankfurt Constitution)

Following the destabilization of social and political order in various European countries due to economic crises and political discontent, a “wave of revolutions [for fundamental rights and freedom] swept through the whole of Europe” in 1848. As a result of the revolutions, rulers of the individual German states consented to create an all-German parliament (National Assembly) to create one German nation-state.

In May 1848, the members of the first all-German parliament met at St. Paul’s Church in Frankfurt to discuss a liberal constitution and the formation of a German nation-state. The constitution was adopted by freely elected representatives of the people.

Constitution of the German Empire of 1849 (Frankfurt Constitution), in Die Verfassung des deutschen Reiches vom 28. März 1849 : und die Entwürfe der sogenannten Erfurter Unionsverfassung (1850), https://lccn.loc.gov/2015374204. Photo by Eva Dauke.

 

With the Constitution of the German Empire (also called the Frankfurt Constitution to distinguish it from the Constitution of the German Empire enacted in 1871), for the first time in Germany, the civil rights and liberties of the individual were formulated and became legally binding. The core elements of the constitution were the equality of all people before the law, the abolition of privileges based on status, the guarantee of personal and political freedom, and the abolition of the death penalty.

The constitution led to the establishment of a constitutional state with fundamental rights. It created a monarchy, called the “German Empire,” whose ruler was elected, but whose successor was then determined by inheritance. Even though it was still a monarchy, the monarch derived his authority to rule from the constitution. (Die Deutschen Verfassungen, at 54.)

In April 1849, Frederick William IV, King of Prussia, who had been selected by the parliament, declined to serve as “Emperor of the Germans.” This nullified the efforts made a year before to establish the constitution as it never entered into force. Nevertheless, the process of designing the constitution of the German Empire served as a model for the Weimar Constitution and the Basic Law.

The original document had been stolen, hidden, and lost in the past, until it was rediscovered again on a pile of rubble on a lake in Potsdam, Germany, in 1951. Since then it has been archived at the German Historical Museum and was last displayed at the place of its creation, the St. Paul’s Church in Frankfurt.

Weimar Constitution of 1919 (Constitution of the German Reich)

The constitutional monarchy of Germany was terminated as a consequence of the Revolution in 1918, which resulted in the proclamation of the Weimar Republic in November 1918.

On July 31, 1919, the National Assembly adopted the Weimar Constitution. The central principles of the constitution were the sovereignty of the people, the separation of powers, and fundamental rights, including, for the first time, the equality of women. In addition, the constitution incorporated different elements from German and international democracies, including representative democracy with a government responsible to parliament and a presidential democracy with a directly elected president, as seen in France and the United States (U.S.).

 

Weimar Constitution of 1919 (Constitution of the German Reich), in Die deutschen Verfassungen : Reproduktion der Verfassungsoriginale von 1849, 1871, 1919 sowie des Grundgesetzes von 1949 (1999), https://lccn.loc.gov/00337436 Photo by Eva Dauke.

 

The Weimar Constitution regulated that all state power was derived from the people. (Weimar Constitution, Art. 1, para. 2.) Therefore, all state officials and the President of the Reich had to gain their legitimacy directly or indirectly through parliamentary elections. (Die Deutschen Verfassungen, at 63.) The President then appointed the Chancellor.

Furthermore, the constitution regulated the colors of the empire, which remained the current colors of the Federal Republic of Germany: black, red, and gold. (Weimar Constitution, art. 3, para. 1.)

In 1933, President Paul von Hindenburg appointed Adolf Hitler as chancellor, which resulted in the end of the Weimar Republic and led to the Second World War.

The Basic Law

After the Second World War, Germany was first divided into three occupation zones, controlled by the U.S., the United Kingdom (UK), and the former Soviet Union (USSR). In 1945, it was changed to four occupation zones after France was added as an occupying power.

The German Basic Law was designed as a temporary constitution for West Germany. It entered into force after the Second World War on May 23, 1949. However, when Germany was reunited in 1990, after the fall of the Berlin Wall, the entire country adopted the Basic Law as well.

The Basic Law from 1949, in The Bonn Constitution; basic law for the Federal Republic of Germany (1950), https://lccn.loc.gov/55035220. Photo by Eva Dauke.

 

The Basic Law is based on the Frankfurt Constitution of 1849 and the Weimar Constitution of 1919. It is considered as a counter-draft to the National Socialist reign of injustice. The intention was to establish a constitutional order that would prevent the recurrence of dictatorship, holocaust, and war, which is set out in article 1 of the Basic Law: “Human dignity is inviolable.” The articles of the Basic Law are of a superior legal standing to all other German legal norms. In addition, certain articles such as the one on human dignity, may not be amended. (Basic Law, art. 79, para. 3.)

The Basic Law sets out the fundamental state system, values, and the people’s fundamental rights. It protects the people from arbitrariness, injustice, and violence by the state. Some rights apply to all people in Germany, while others apply only to German citizens. The rights cover human dignity, freedom of speech, religion, assembly, and other aspects of life.

The original edition of the German Basic Law is stored in a safe in the German Bundestag.

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. They include, among others:

Additional In Custodia Legis blog posts on German constitutional history:

Happy anniversary Basic Law!

Update June 4, 2024: This post has been updated to reflect that Germany was divided into four occupation zones after the Second World War.

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