Germany -- Politics and government -- 1918-1933; Germany. Verfassung (1919)
From the legal point of view, the defects of this programme are no less
serious. It is extremely difficult, if not impossible, to know what
authority and what meaning should be attached to the fundamental rights.
What precisely does such a phrase as one in Article 109 mean? “Privileges
or discriminations due to birth or rank and recognized by law are
abolished.” Does, again, the provision in Article 115, according to which
“The house of every German is his sanctuary and is inviolable,” prevent
a commissioner of buildings from dividing spacious lodgings in order to
combat a housing crisis?
What is still more regrettable is that the Constitution never specifies
to what extent the fundamental rights have or have not legal force. Do
all previously enacted laws that are irreconcilable with fundamental
rights in the Constitution cease to operate the moment the Constitution
comes into force? Should not this solution be applicable only to laws
enacted after the adoption of the Constitution and for such of their
provisions as are contrary to the Constitution? Or must it be interpreted
that the fundamental rights have no importance other than to constrain
legislatures to subject existing legislation to the principles these
rights proclaim, and to vote only for laws that conform to these
principles? Finally, are not these fundamental rights merely general
indications which may be expected to have such moral force as they can
impose on the legislature?
It was attempted to bring some clarity into the chaos of the discussions
on this head. At first a proposal was made according to which any one had
the right to complain before a tribunal of all injurious violations of
fundamental rights. This was rejected; for otherwise any one belonging
to the middle classes could complain on the basis of the provision of
Article 164, according to which “The independent … middle-class shall
be fostered,” and claim that the provision was a dead letter. There was
voted, however, on the first reading a provision according to which
the fundamental rights would constitute “a course and a limitation for
legislation, administration, and jurisprudence in the Reich and in
the States.” This phrase would have increased, without any possible
ambiguity, the immediate legal efficacy of the fundamental rights. It
was, however, done away with at the second reading, for it would not have
been applicable except to provisions which have a positive content, and
it would have had, aside from this, only the character of an abstract
maxim for scholastic manuals. It was decided, therefore, not to specify
in any way whatever the legal significance of the articles of the
Constitution relating to fundamental rights and duties. It would fall
to legislators, judges and public officers to interpret in the future
each of these articles separately, and to be guided according to the
results of this interpretation. If, however, one may attempt such an
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