Bundesrat (German Empire)

Bundesrat predecessors

The historical predecessors of the Bundesrat can be attributed ^[4] :

• Reichstag of the Holy Roman Empire , from 1663 to 1806 on an ongoing basis, sitting in Regensburg
• Union Diet (Bundestag) of the German Union , which met from 1815 to 1866 in Frankfurt and Augsburg
• the annual meeting of the General Customs Conference ( German Generalzollconferenz ) of the German Customs Union ,

as well as unrealized projects in practice:

• chambers of states ( German: Staatenhaus ) from the constitution of the German Reich of 1849
• of the Allied Council ( German: Bundesrat ) from Austria's proposals for reforming the German Union ( German: Reformakte des Deutschen Bundes ) of 1863 .

Constitution of the North German Union and the introduction of the Bundesrat

The economic, political and military strengthening of Prussia , which became, after the victories over Denmark in 1864 and the Austrian Empire in 1866, the dominant power in Central Europe , decided the German question in favor of its small-German version ^[5] . The between Prussia and other North German states, signed on August 18, 1866, led to the formation of the temporary Augustow Alliance ( German: Augustbündnis ) ^[6] , which was transformed into the North German Union after the constitution of this state entity entered into force on July 1, 1867 ^{[7 ]} . In the Fundamentals of the new Union Constitution ( German: Grundzüge einer neuen Bundesverfassung ), sent on June 10, 1866 by Bismarck , then the Prime Minister of Prussia, to the governments of the German Union for review ^[5] and which became the foundation of the basic law of the union being created, the future Union Council was not yet mentioned ^{[ 8]} . However, already in the draft constitution of the North German Union submitted for consideration by the constitutional Reichstag, the concept of “union council” first appears ^[9] . Bismarck himself wanted the representative body of the union states to resemble the Bundestag of the German Union to the maximum extent, noting that “the more you rely on the old forms, the easier it will be to do the whole thing” ^[1] . Later, during the formation of the empire in 1871, he insisted against renaming the Bundesrat “Reichsrat” ( German Reichsrat , that is, the imperial council ), as he wanted to emphasize the union character of this body ^[10] .

The German Federation, in which five-sixths of the population were Prussian citizens, was called the “union of the unequal” ^[11] or, more ironically, the “union of the dog and the fleas on its back” ^[1] . The distribution of votes in the Bundesrat between the individual states of the union was made not by the number of their inhabitants, but by their area ^[3] and was oriented toward representation in the plenum of the former German Union ( Article 6 of the constitution). Moreover, from Prussia, the area and population of which accounted for more than 80% of the Union ^{[12] [13]} , there were only 17 representatives of the total number of 43, that is, less than 40%. Bismarck admitted that distribution according to population would lead to the fact that the rest of the union states would not have an interest in such a body ^[14] . But although Prussia did not have a majority in the Union Council, and with the accession of the South German states its share became even less, in reality, its position on any important issue was not blocked by other members of the Bundesrat ^[15] .

The provisions of the constitution of the North German Union, with the exception of minor details, were completely transferred to the constitution of the German Empire, in which a separate section and numerous references to the rest of the text were devoted to the Bundesrat, including:

• Article 5 proclaimed that legislation in the empire was carried out by the Bundesrat and the Reichstag . For the adoption of the law, a simple majority of votes in both of these bodies is required.
• Art. 6 determined the representation of the member states of the empire in the union council
• Art. 11 demanded that the emperor, when declaring war, obtain the consent of the Bundesrat (except in cases of repelling an attack on the empire)
• Art. 15 indicated that the imperial chancellor is the chairman and manager of his affairs
• Art. 19 empowered the Bundesrat to make decisions to force participating States to fulfill their obligations under the imperial constitution
• Art. 72 obliged the Chancellor to report annually to the Union Council on the expenditures of the imperial budget
• Art. 76 attributed the competence of the Bundesrat to the resolution of conflicts between states within the empire.

When voting, individual states could give all the votes due to them only in a single package: either “for” or “against” ( Article 6 ). All decisions were taken by a simple majority, with equal votes, the position of the chancellor - the chairman of the council ( art. 7 ) became decisive.

The Bundesrat formed the following standing committees ( Art. 8 ):

1. for the army and fortresses,
2. for marine affairs
3. for customs and taxes,
4. for trade and exchange,
5. for railways, mail and telegraphs,
6. for justice
7. for the counting part,
8. for foreign affairs.

Representatives of the states in the Bundesrat received diplomatic protection and the right to speak in the Reichstag, while at the same time they were not allowed to be members of both of these bodies ( Articles 9 and 10 ). Insulting the Bundesrat or its members was punishable by law ( art. 74 ). Any change to the constitution of the German Empire during its consideration in the Union Council could be blocked by 14 votes cast “against” ( Article 78 ).

The Bundesrat was not conceived as a permanent body and should be assembled as necessary (according to the text of the constitution: “annually”). Although article 12 of the fundamental law gave the emperor the right to convene, open, postpone and close the union council, he could not dispose of this right solely at his discretion ^[15] , and according to Art. 14 at the request of a third of the votes of the Bundesrat, its convocation was already becoming a necessity. Art. 24 gave the Bundesrat the right to dissolve the Reichstag (with the consent of the Kaiser ). In reality, the initiator of such a step was always the emperor, who introduced his proposal to the council through the chancellor, and then only formally confirmed the decision made by the allied council (4 of the 13 Reichstags chosen were disbanded according to this scheme) ^[15] .

All bills in the Reichstag (which, for its part, also had legislative initiative ) were introduced by the Bundesrat after they were examined on behalf of the emperor ( Article 16 ), which in practice meant close interaction between the Union Council and the imperial bureaus ( German Reichsamt , prototype of future ministries), whose heads the Kaiser himself appointed ^[15] . The laws adopted in the Reichstag needed the approval of the Bundesrat (thus, it had the right to veto ) ^[16] . In addition, the Union Council issued administrative instructions and instructions for the implementation of legislative acts, if such procedures were not prescribed in the text of the laws themselves ( Article 7 ).

The provisions of Art. 7 allowed to determine the Bundesrat at the same time as ^[14] :

1. Legislature ( German: Gesetzgebungsorgan )
2. regulatory authority ( German: Verordnungsorgan )
3. supreme imperial court ( German oberstes Reichsgericht ).

Since, according to the constitution, the Bundesrat had both legislative ( German legislative ) and executive ( German exekutive ) and judicial ( German judikative ) functions ^[17] , it is rather difficult to determine its place in the classical system of separation of state power ^[15] . The classification of the Bundesrat is not competent as a joint body of states united in the German Empire, but as a federal body that shaped the common imperial will ^[15] .

The Union Council was the embodiment of the principle of federalism in Germany and was conceived as a counterweight to the Reichstag and an obstacle to further parliamentarization of the union ^[15] , even a kind of anti-parliamentarism ^[16] . Due to the fact that the federal character of the German Empire was reflected in the Bundesrat, it was called the best creation of the creators of the constitution ^[18] . The Union Council was the bearer of sovereign imperial power and did not directly report to the emperor as the head of the executive branch, since, even combining the functions of the executive branch, it was not an imperial ministry ^[15] . In the spirit of the fundamental law of the empire, the supreme power in it did not belong to the German Kaiser, but to the totality of the member states of the union represented in the Bundesrat ^[19] .

In general, the union and imperial constitutions ranked the Bundesrat above the Reichstag ^[15] , although, given the non-public and bureaucratic nature of the work of the Union Council, it was the activities of the Reichstag that came to the forefront ^{[16] [1]} . Bismarck noted that he consciously abandoned the idea of ​​a bicameral parliament, so as not to complicate Union lawmaking ^[20] . In the light of the constitution, the Bundesrat was not the upper house of parliament simply because its members did not have a free mandate (that is, they had to vote not at their discretion, but according to the position of the governments that sent them), and their membership in it was not personal, but only temporary order of the countries that sent them ^[15] . Thus, the members of the Bundesrat were, in fact, not authorized by the union states, but these states themselves, which made it possible to call the union council a chamber of states ^[15] .

Although, according to the constitution, the Bundesrat was conceived as the highest federal body, in reality - not least because of the Chancellor's strong position - his role was more or less secondary ^[17] . The principle of the countersignature of the Reich Chancellor, as well as his position as the highest executive official of the empire, doomed the Bundesrat to a rather illusive existence ^[15] . This was also emphasized by the fact that Bismarck, who was the chancellor as chairman of the union council, practically did not participate in its meetings (as well as the ministers of individual states represented in the Bundesrat almost exclusively by high-ranking officials) ^[15] .

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  German Union in 1866

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  Section of the Constitution of the North German Union on the Bundesrat

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  Otto von Bismarck, First Allied Chancellor and Chairman of the Bundesrat

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  Section of the German Empire Constitution on the Bundesrat

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  Bundesrat correspondence wrap

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  Bundesrat meeting room
  (circa 1894)