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Article 48

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Title: Article 48  
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Subject: Weimar Republic, Paul von Hindenburg, Reichstag fire, Constructive vote of no confidence, Heinrich Brüning, Weimar Constitution, Hugo Preuß, Adolf Hitler, Stennes Revolt
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Article 48

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 (Notverordnungen)".[1]

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.[2]

Article 48 did require the President to inform the Reichstag immediately of the issuance of the emergency decree, and gave the Reichstag the power to nullify the emergency decree by simple majority action. The Reichsrat, or upper house, was not involved in this process at all.[2][3] If the Reichstag nullified the decree, 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 Versailles, 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.[3] On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current military members.[4][5] 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 judges and lay judges which still exists today.[6]

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[7] found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag.[8] 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.[9] When von Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree by a slight majority[10] 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.[11][12]

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.[13] 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.

Nazi use

On January 30, 1933, Adolf Hitler 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 habeas corpus, 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). Over the years, Hitler used Article 48 to give his dictatorship the stamp of legality. Thousands of his decrees--such as those that abolished all other political parties apart from the Nazis and enlarged Hitler's powers--were based explicitly on the Reichstag Fire Decree, and thus on Article 48. Thus, for the next 12 years Hitler ruled under what amounted to martial law.

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.

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[14] not fulfilling the duties imposed upon it by the Reich[15] 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 German 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.

Footnotes

See also

External links

  • Selected articles of Weimar constitution
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