Article 48 (Weimar Constitution)
Encyclopedia
Article 48 of the constitution
of the Weimar Republic
of Germany
(1919–1933) allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag
. This power was understood to include the promulgation of "emergency decrees ()".
The text of the Article did not precisely define the kind of emergency that would justify its usage, and did not expressly give the President the power to enact, issue or otherwise promulgate legislation. However, such an inherent Presidential legislative power is fairly to be implied, since the Article expressly gives the Reichstag the power to cancel the emergency decree by a simple majority vote, and this parliamentary power implies that the issuance of the decree could, by its express terms or its operation, impinge on the Reichstag's constitutional function.
Article 48 did require the President to inform the Reichstag immediately of the issuance of the emergency decree, and it permitted the Reichstag to nullify the emergency decree by simple majority action, but the upper house of the Reichsrat was not involved in this process at all. If the Reichstag objected to the emergency decree, it could retaliate by nullifying the decree by majority action, but the President could in effect counter-retaliate under Article 25 and dissolve the Reichstag, and call for new elections within 60 days.
, there was a period of hyperinflation in the Weimar Republic between 1921 and 1923, the Occupation of the Ruhr
between 1923 and 1925. Friedrich Ebert
, a Social Democrat and the Republic's first President, used Article 48 on 136 occasions, including the deposition of legitimately elected governments in Saxony and Thuringia when those appeared disorderly. On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current military members. Ebert had granted Cuno considerable latitude under Article 48 to deal with the inflation and matters related to the mark. The Emminger Reform of 4 January 1924 abolished the jury
system as triers of fact
within the judiciary of Germany
and replaced it with a mixed system of judge
s and lay judge
s which still exists today.
Article 48 was used by President Paul von Hindenburg
in 1930 to deal with the economic crisis of the time
. During spring and summer 1930, Chancellor
Heinrich Brüning
found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag. The government, however, did not seriously try to negotiate with the Parliament to find a modus vivendi
. Instead, Brüning asked Hindenburg to invoke Article 48 in order to promulgate the bill as an emergency decree and thereby give Brüning's government the authority to act without the consent of the Reichstag. When von Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree by a slight majority on July 18, 1930. Under Article 48, this vote by a majority of the Reichstag invalidated the presidential decree. Faced with a breakdown of parliamentary rule at a time when the economic situation demanded action, Brüning asked von Hindenburg to dissolve parliament and call for new elections. The Reichstag was accordingly dissolved on 18 July and new elections were scheduled for 14 September 1930.
The election produced increased representation in the Reichstag for both the Communists and, most dramatically, for the Nazis, at the expense of the moderate middle-class parties. Forming a parliamentary majority became even more difficult for Brüning. In fact, just to conduct the normal business of government, he was forced to repeatedly invoke Article 48 several times between 1930 and 1932. Subsequent governments under chancellors Franz von Papen
and Kurt von Schleicher
during the tumultuous year 1932 obtained President von Hindenburg's decree of legislation under Article 48 when they too found it impossible to obtain a parliamentary majority as the extremist parties on the Left and Right gained power.
The invocation of Article 48 by successive governments helped seal the fate of the Weimar Republic. While Brüning's first invocation of a Notverordnung may have been well-intentioned, the power to rule by decree became increasingly used not in response to a specific emergency but as a substitute for parliamentary leadership. The excessive use of the decree power and the fact that successive chancellors were no longer responsible to the Reichstag likely played a significant part in the loss of public confidence in constitutional democracy, in turn leading to the rise of the extremist parties.
was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for March 5. Six days before the election, on February 27, the Reichstag Fire
damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get President von Hindenburg to sign the Reichstag Fire Decree
, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State).
Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended.
The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a single-party
dictatorship
in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power to suppress, intimidate, and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality.
The March 5 elections gave the Nazi-DNVP coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on March 23, 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). By way of the Reichstag Fire Decree, Article 48 was the basis of later decrees that abolished the political parties other than the Nazi Party and strengthened Hitler's dictatorial power.
The misuse of Article 48 was fresh in the minds of the framers of the Basic Law for the Federal Republic of Germany
. They decided to significantly curb the powers of the president, to a point merely ceremonial. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor can only be removed from office if there is already a positive majority for a prospective successor.
Weimar constitution
The Constitution of the German Reich , usually known as the Weimar Constitution was the constitution that governed Germany during the Weimar Republic...
of the Weimar Republic
Weimar Republic
The Weimar Republic is the name given by historians to the parliamentary republic established in 1919 in Germany to replace the imperial form of government...
of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
(1919–1933) allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag
Reichstag (Weimar Republic)
The Reichstag was the parliament of Weimar Republic .German constitution commentators consider only the Reichstag and now the Bundestag the German parliament. Another organ deals with legislation too: in 1867-1918 the Bundesrat, in 1919–1933 the Reichsrat and from 1949 on the Bundesrat...
. This power was understood to include the promulgation of "emergency decrees ()".
The text of the Article did not precisely define the kind of emergency that would justify its usage, and did not expressly give the President the power to enact, issue or otherwise promulgate legislation. However, such an inherent Presidential legislative power is fairly to be implied, since the Article expressly gives the Reichstag the power to cancel the emergency decree by a simple majority vote, and this parliamentary power implies that the issuance of the decree could, by its express terms or its operation, impinge on the Reichstag's constitutional function.
Article 48 did require the President to inform the Reichstag immediately of the issuance of the emergency decree, and it permitted the Reichstag to nullify the emergency decree by simple majority action, but the upper house of the Reichsrat was not involved in this process at all. If the Reichstag objected to the emergency decree, it could retaliate by nullifying the decree by majority action, but the President could in effect counter-retaliate under Article 25 and dissolve the Reichstag, and call for new elections within 60 days.
History
Following the Treaty of VersaillesTreaty of Versailles
The Treaty of Versailles was one of the peace treaties at the end of World War I. It ended the state of war between Germany and the Allied Powers. It was signed on 28 June 1919, exactly five years after the assassination of Archduke Franz Ferdinand. The other Central Powers on the German side of...
, there was a period of hyperinflation in the Weimar Republic between 1921 and 1923, the Occupation of the Ruhr
Occupation of the Ruhr
The Occupation of the Ruhr between 1923 and 1925, by troops from France and Belgium, was a response to the failure of the German Weimar Republic under Chancellor Cuno to pay reparations in the aftermath of World War I.-Background:...
between 1923 and 1925. Friedrich Ebert
Friedrich Ebert
Friedrich Ebert was a German politician of the Social Democratic Party of Germany .When Ebert was elected as the leader of the SPD after the death of August Bebel, the party members of the SPD were deeply divided because of the party's support for World War I. Ebert supported the Burgfrieden and...
, a Social Democrat and the Republic's first President, used Article 48 on 136 occasions, including the deposition of legitimately elected governments in Saxony and Thuringia when those appeared disorderly. On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current military members. Ebert had granted Cuno considerable latitude under Article 48 to deal with the inflation and matters related to the mark. The Emminger Reform of 4 January 1924 abolished the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
system as triers of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
within the judiciary of Germany
Judiciary of Germany
The Judiciary of Germany is based on the concept of the , in which the exercise of governmental power is constrained by law. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany which are responsible for the lower levels...
and replaced it with a mixed system of judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s and lay judge
Lay judge
A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009....
s which still exists today.
Article 48 was used by President Paul von Hindenburg
Paul von Hindenburg
Paul Ludwig Hans Anton von Beneckendorff und von Hindenburg , known universally as Paul von Hindenburg was a Prussian-German field marshal, statesman, and politician, and served as the second President of Germany from 1925 to 1934....
in 1930 to deal with the economic crisis of the time
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
. During spring and summer 1930, Chancellor
Chancellor
Chancellor is the title of various official positions in the governments of many nations. The original chancellors were the Cancellarii of Roman courts of justice—ushers who sat at the cancelli or lattice work screens of a basilica or law court, which separated the judge and counsel from the...
Heinrich Brüning
Heinrich Brüning
Heinrich Brüning was Chancellor of Germany from 1930 to 1932, during the Weimar Republic. He was the longest serving Chancellor of the Weimar Republic, and remains a controversial figure in German politics....
found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag. The government, however, did not seriously try to negotiate with the Parliament to find a modus vivendi
Modus vivendi
Modus vivendi is a Latin phrase signifying an agreement between those whose opinions differ, such that they agree to disagree.Modus means mode, way. Vivendi means of living. Together, way of living, implies an accommodation between disputing parties to allow life to go on. It usually describes...
. Instead, Brüning asked Hindenburg to invoke Article 48 in order to promulgate the bill as an emergency decree and thereby give Brüning's government the authority to act without the consent of the Reichstag. When von Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree by a slight majority on July 18, 1930. Under Article 48, this vote by a majority of the Reichstag invalidated the presidential decree. Faced with a breakdown of parliamentary rule at a time when the economic situation demanded action, Brüning asked von Hindenburg to dissolve parliament and call for new elections. The Reichstag was accordingly dissolved on 18 July and new elections were scheduled for 14 September 1930.
The election produced increased representation in the Reichstag for both the Communists and, most dramatically, for the Nazis, at the expense of the moderate middle-class parties. Forming a parliamentary majority became even more difficult for Brüning. In fact, just to conduct the normal business of government, he was forced to repeatedly invoke Article 48 several times between 1930 and 1932. Subsequent governments under chancellors Franz von Papen
Franz von Papen
Lieutenant-Colonel Franz Joseph Hermann Michael Maria von Papen zu Köningen was a German nobleman, Roman Catholic monarchist politician, General Staff officer, and diplomat, who served as Chancellor of Germany in 1932 and as Vice-Chancellor under Adolf Hitler in 1933–1934...
and Kurt von Schleicher
Kurt von Schleicher
Kurt von Schleicher was a German general and the last Chancellor of Germany during the era of the Weimar Republic. Seventeen months after his resignation, he was assassinated by order of his successor, Adolf Hitler, in the Night of the Long Knives....
during the tumultuous year 1932 obtained President von Hindenburg's decree of legislation under Article 48 when they too found it impossible to obtain a parliamentary majority as the extremist parties on the Left and Right gained power.
The invocation of Article 48 by successive governments helped seal the fate of the Weimar Republic. While Brüning's first invocation of a Notverordnung may have been well-intentioned, the power to rule by decree became increasingly used not in response to a specific emergency but as a substitute for parliamentary leadership. The excessive use of the decree power and the fact that successive chancellors were no longer responsible to the Reichstag likely played a significant part in the loss of public confidence in constitutional democracy, in turn leading to the rise of the extremist parties.
Nazi use
On January 30, 1933, Adolf HitlerAdolf Hitler
Adolf Hitler was an Austrian-born German politician and the leader of the National Socialist German Workers Party , commonly referred to as the Nazi Party). He was Chancellor of Germany from 1933 to 1945, and head of state from 1934 to 1945...
was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for March 5. Six days before the election, on February 27, the Reichstag Fire
Reichstag fire
The Reichstag fire was an arson attack on the Reichstag building in Berlin on 27 February 1933. The event is seen as pivotal in the establishment of Nazi Germany....
damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get President von Hindenburg to sign the Reichstag Fire Decree
Reichstag Fire Decree
The Reichstag Fire Decree is the common name of the Decree of the Reich President for the Protection of People and State issued by German President Paul von Hindenburg in direct response to the Reichstag fire of 27 February 1933. The decree nullified many of the key civil liberties of German...
, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State).
Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended.
The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a single-party
Single-party state
A single-party state, one-party system or single-party system is a type of party system government in which a single political party forms the government and no other parties are permitted to run candidates for election...
dictatorship
Dictatorship
A dictatorship is defined as an autocratic form of government in which the government is ruled by an individual, the dictator. It has three possible meanings:...
in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power to suppress, intimidate, and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality.
The March 5 elections gave the Nazi-DNVP coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on March 23, 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). By way of the Reichstag Fire Decree, Article 48 was the basis of later decrees that abolished the political parties other than the Nazi Party and strengthened Hitler's dictatorial power.
The misuse of Article 48 was fresh in the minds of the framers of the Basic Law for the Federal Republic of Germany
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
. They decided to significantly curb the powers of the president, to a point merely ceremonial. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor can only be removed from office if there is already a positive majority for a prospective successor.
Text of Article 48
| Artikel 48 | Article 48 |
| Wenn ein Land die ihm nach der Reichsverfassung oder den Reichsgesetzen obliegenden Pflichten nicht erfüllt, kann der Reichspräsident es dazu mit Hilfe der bewaffneten Macht anhalten. | In the event of a State not fulfilling the duties imposed upon it by the Reich Constitution or by the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to do so. |
| Der Reichspräsident kann, wenn im Deutschen Reiche die öffentliche Sicherheit und Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen Sicherheit und Ordnung nötigen Maßnahmen treffen, erforderlichenfalls mit Hilfe der bewaffneten Macht einschreiten. Zu diesem Zwecke darf er vorübergehend die in den Artikeln 114, 115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft setzen. | If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153. |
| Von allen gemäß Abs. 1 oder Abs. 2 dieses Artikels getroffenen Maßnahmen hat der Reichspräsident unverzüglich dem Reichstag Kenntnis zu geben. Die Maßnahmen sind auf Verlangen des Reichstags außer Kraft zu setzen. | The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag. |
| Bei Gefahr im Verzuge kann die Landesregierung für ihr Gebiet einstweilige Maßnahmen der in Abs. 2 bezeichneten Art treffen. Die Maßnahmen sind auf Verlangen des Reichspräsidenten oder des Reichstags außer Kraft zu setzen. | If danger is imminent, a State government may, for its own territory, take temporary measures as provided in Paragraph 2. These measures are to be revoked on the demand of the President of the Reich or of the Reichstag. |
| Das Nähere bestimmt ein Reichsgesetz. | Details are to be determined by a law of the Reich. |