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What does the 1949 Basic Law tell us about the perceived flaws of the Weimar Constitution Assignment

The Basic law, or Grundgesetz went into force on May 23rd 1949, it was the new Constitution of the Federal Republic of Germany. The new constitution was created including many features of the old, however just from the fact that a new constitution was being created we can see it was strongly felt the old Weimar one contained serious flaws. Germany had just overcome the darkest hour of its history and what was put in place was a much stricter constitution which focused on safeguarding the control of country and most importantly the Human Rights of those within it.

Clearly many felt this was necessary as perhaps it was the weakness of the previous constitution that allowed Germany’s horrific past to occur. In theory, the Weimar constitution would have been the perfect democratic instrument. However, because the Government was so strongly rejected by its people many loopholes were quickly found and exploited.

The Weimar Government couldn’t even supply soldiers to deal with civil unrest, they relied on volunteers to fight when needed (as opposed to the Basic Laws ‘Militant Democracy’ which later amended this) The vagueness of many points allowed opponents to take an advantage and the Weimar quickly fell to Fascism. Once in power, the Nazi’s used these weaknesses to turn the constitution to whatever they wanted. Firstly the system of proportional representation made it easy for the Nazi’s to gain there majority.

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Any party with at least 60,000 votes gained representation in the Reichstag. Under this system a certain number of seats were assigned to a party in the Reichstag, depending on the total percentage of the popular vote a party received. Because of this the National Socialists 18. 3% gained them 107 seats in the Reichstag, a massive increase on the 12 seats just two years previously and a ‘much higher figure than if the representation was based on single-man constituencies’. This meant the left and right wing extremist parties now had a larger combined representation that the traditionally stronger Social Democrats. Because no one else had a strong majority the Nazi’s were able to become much more powerful than if a stronger constitution had been in place. Equally important there was the role and powers of the President. Under Weimar Constitution the President was extremely powerful.

In everyday life the President had complete control of the army, could dismiss the Reichstag and call referendums on any piece of legislation he wanted. On top of this the President could use article 48 of the Weimar Constitution to further his powers. Under article 48 the President could call a state of emergency and suspend all basic rights. The police and army could be taken under control and used to restore the country to the order that the President wanted. Despite this huge amount of power, the election of the president was by the popular vote rather than a decision from the two houses.

Any political party with enough popularity could in effect get their own choice of president elected. If this had not been the case perhaps Presidents who were wiser and better for the job would have been elected. As it was also the Presidents decision on which chancellor to elect or dismiss, this weakness of the Weimar Constitution can be seen as vital in Fascism taking control. It was after all President Hindenburg’s decision to elect Hitler as chancellor, putting him in place to take over the county.

The chancellors and Reichstag could end the emergency measures, but they were under the control of the President. This gave the president complete control and paved the way for a dictatorship. Clearly and this is a strong case against the Weimar Government, the flaws in their constitution allowed this to take place. The reduced role given by the 1949 Basic Law certainly indicates this was a pivotal flaw that needed changing. Basic law took away almost all of the Presidents powers, leaving him in an almost exclusively representative role.

A President would now be elected by a joint decision in the Bundestag (not the public) every five years instead of seven and could only be re-elected once. All of the powers that were present under the Weimar Constitution were now only displayed formally; all real power was taken away. For instance the President can still propose a candidate for chancellor, but the final decision now falls to the Bundestag. Another hugely important area of flaws, which the Basic Law of 1949 attempted to solve, was the role of Constitutional Law and the situation with human rights.

Under the Weimar Constitution ‘Human Rights and other Constitutional Civic rights are Declaratory’ they cannot be enforced. Human rights therefore were allowed to be broken and repeatedly were on a huge scale all over Germany. The Basic Law of 1949 changed this saying ‘all human rights are directly enforceable by law’, clearly this amendment indicates the Weimar Constitution was perceived to contain a huge flaw in this area. Even as far as to blame the constitution for the persecution suffered by millions during Nazi rule.

The Basic Law also changed how constitutional changes could occur. Under Weimar the constitution could be overridden, if a piece of legislation (even un-constitutional legislation) had a 2/3 majority in the houses of parliament it would be passed. Basic law changed it so that any un-constitutional legislation would be considered void ‘irrespective of the size of the parliamentary majority with which it was passed’.

Basic Law also created a constitutional Judicial reviewing system, the Federal Constitutional Court. 16 judges, elected by each house of Parliament work as a checking system to ensure the constitution doesn’t get manipulated in any way to suit the government. As this wasn’t in place during the Weimar government the constitution was able to be practically re-written and then exploited by the Nazi’s. Clearly there are many flaws and in part these views are therefore accurate, the Weimar government’s failings allowed an extremist party to use illegal campaign methods to gain power.

This can be easily seen by all of the amendments Basic Law has made to ensure it not happening again. The Law has even gone so far as to state governments can use the electoral system to prevent extremist parties, for instance the ‘5% hurdle’, which would have prevented the Nationalist Socialists getting power in 1928 if in effect. The Weimar Constitution allowed the removal of democracy and a dictatorship possible. The disproportionate amount of power the President now had gave the option of dismissing the cabinet. With weaknesses like proportional representation and Article 48, extremist parties like the Nazis were able to utilize these flaws to their advantage. This meant that when Hindenburg eventually elected Hitler in 1933 as chancellor all Hitler has to do was wait for the Presidents death. Once Hindenburg died Hitler assumed power and soon his dictatorship, fascism now ruled the country. It is unfair however to solely use these weaknesses as an explanation for the sudden and powerful emergence of fascism in Germany. The Weimar did have all the basic makings for a successful constitution.

Their rule just coincided with many external factors which were running down the country and hindered the government. Because of these external factors it is very arguable that Germany was not ready for the modernity of Weimar. And even if it was the country never accepted the Weimar, giving it no chance of success no matter what its flaws Germany was a very traditionalist country, especially the older generations and upper classes, with many resenting the new Weimar Government. Despite achievements like modernisation and a new culture the administration was still strongly resented.

Many were against them from the beginning due to the signing of the Treaty of Versailles. Germans, especially old soldiers felt they could have won the First World War if given more time and that the weak Weimar Government had ‘stabbed them in the back’ by signing Germany victory away. This treaty was very harsh limiting every aspect of life in Germany and greatly weakening the country as a whole. This strict imposition was again strongly resented and been argued by many as a contributing factor in the emergence of fascism.

The country felt bitter and a seed of revenge was planted when the allies clamped down on Germany so severely. At the same time economic problems remained unresolved and disenchantment was growing. Germany had been hit with massive war reparations, war reparations that she couldn’t pay. Because of this France invaded Germany. They invaded the Ruhr in 1923 to recuperate some of the owed money. The Weimar with all but no army did nothing much to the disgust of her citizens, the Weimar shown Germany yet again that it was weak.

Combined with the problems of Hyperinflation (which hit the middle classes especially hard) the German economy was in a dire state. People were increasingly feeling a more extreme government was needed. When the situation worsened further in 1929 with the Wall Street crash the country bit the bullet and Hitler was elected, so starting the progression into fascism. Gradually, after the end of the war, the promoters of the ideas of Fascism and Nazism played more and more on the flaws of the Weimar and the sympathies of the public.

Almost all areas of German society were becoming susceptible to the fascist propaganda as there situation didn’t improve. Despite the fact that lots of people disagreed with many of the party’s beliefs, the ideas of fascism and Nazism stirred up much needed nationalistic thinking and desperate times called for desperate measures. Naturally the upper-classes, other traditionalists and the ex-army supported this thinking, which would return to the old style Germany. The upper class industrial elites especially as the Nazi system also supported their financial wants.

The working class however were also very susceptible, after years of unemployment a brighter future could be seen and the middle class saw the whole growing situation as a defence against communism. Use of scape-goats (or as the Germans claimed, blaming those responsible), was applied throughout fascisms rule as it is very successful. This started off with the Weimar government but within only a few years of power even very extremist idea’s such as anti-Semitism were becoming much more widespread and accepted.

Clearly the many problems Weimar government helped leave an opening for Fascism to emerge taking complete control of Germany, breaking the human rights of all its citizens and creating a formidable enemy for the rest of the world. However during the years of the rise many external factors forced a desperate Germany to want an extreme solution, such as Fascism. Therefore the emergence of Fascism was assisted by all the problems facing Germany not solely those of the Weimar.

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