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Zero hour?

Contrary to popular belief, the surrender of the German Wehrmacht on 8 May 1945 did not reset Germany to a blank slate. Even before the surrender, the Allies as well as Germans in exile and resistance groups had considered what Germany after the war might look like. In the course of these considerations, they also thought about what form a new constitution might take. For example, the resistance group around General Ludwig Beck and the Mayor of Leipzig, Carl Friedrich Goerdeler, worked concretely on a post-war constitution during the height of the Second World War. Even at this early stage, Germany`s future was seen to be in a democratic federal state.

After the most necessary reconstruction measures had been completed, in the summer of 1947 the Allies turned their attention to the political and structural reconstruction of (Western) Germany. In the course of this, the British military governor, Sir Brain Robertson, asked the Zonenbeirat on June 12, 1947 to comment on Germany's future political structures.  On July 30, 1948 the Zonenbeirat presented its memorandum on future constitutional policy. In addition to the Zonenbeirat's draft, the memorandum also contained contributions from the individual parties. This draft was also noticeably federalist in character.

Even during the deliberations of the Zonenbeirat, the Allies decided in their final communiqué of June 7, 1948 at the Six-Power Conference in London that it should be up to the Germans themselves to draw up a new constitution. The Allies only laid down a framework and reserved the right to review the text of the constitution. Thus, the so-called Frankfurt Documents were handed over to the eleven minister-presidents of the Western Zone on July 1, 1948. The very first provision of this document authorised the minister-presidents to convene a constituent assembly.

Preparation for the Constituent Assembly

In the course of organising this constituent assembly, the Hessian Prime Minister Stock made the proposal on July 1, 1948 to convene a committee of experts before the constituent assembly. Hans Erhard of the newly-formed Christian Democratic Union (CDU) succeeded with his proposal to hold this assembly on the island of Herrenchiemsee.  Originally, it was planned that only experienced civil servants would take part in this expert meeting. However, it soon became apparent that the American and French occupation zones were represented mainly by career politicians. Within the assembly, each state was represented by one spokesman. In addition, there were staff members and experts, but they were there in an advisory capacity only and were not entitled to vote.

The Herrenchiemsee Constitutional Convention was officially opened on August 10, 1948. In the three sub-committees, the plenipotentiaries, staff and experts discussed the constitution of the future West German state.

Proposals during the Herrenchiemsee Constitutional Convention

It was quickly agreed that the content of Article 1 (or A as it was called was initially called) should have a prominent position. After the horrors of the Second World War and the decline of the morals of an entire society, Article 1 was to be the compass for the new state`s moral direction. In the minutes, the justification for Article A reads: "A provision should be placed at the top which emphasises in all sharpness the fundamentally different conception of a liberal-democratic state compared to that of the totalitarian dictatorship state of the recent past." 

A first proposal for Article A came from Hans Nawiasky, Fritz Baade and Gerhart Feine, Josef Bayerle, Otto Suhr and Carlo Schmid. According to them, Article A should read as follows: "The state exists for the sake of man, not man for the sake of the state. The dignity of the human person is inviolable (...)".

It is no coincidence that Hans Nawiasky, of all people, suggested parts of second sentence. Already in the Bavarian Constitution, which came into force on December 8,  1946 - before the Herrenchiemsee Constitutional Convention - the preamble states: "Respect for human dignity" and in Article 100 of the Bavarian Constitution: "The dignity of the human personality is to be respected in legislation, administration and the administration of justice". Hans Nawiasky had pushed through these formulations during the deliberations on the future Bavarian constitution. Sentence 1 of this proposal goes back to the proposal of Otto Suhr, who took up the idea of Carlo Schmid, who made the following proposal: "The state is the work of man. Therefore, man is not there for the sake of the state, but the state for the sake of man". This sentence was a creation clause at the beginning of Article A. It was important to Carlo Schmid that the creation clause made no reference to God. Fritz Baade had previously suggested the following formulation of sentence 1: "Man is created by God, but the state is created by man. Therefore, man is not there for the sake of the state, but the state for the sake of man."

It is also no coincidence that Josef Beyerle brought the term "inviolability" into consideration. Josef Beyerle worked on the constitution in Hesse. There, Article 3 states: "Life, health, honour and dignity of the human being are inviolable".

The first proposal for Article A thus consisted of a preceding creation clause, which deliberately dispensed with a reference to God, and then of the absolute clarification that the dignity of the human personality is inviolable. Unfortunately, the reports of the Herrenchiemsee Constitutional Convention do not allow any conclusions to be drawn as to whether and what discussions took place around the concept of "dignity" and "inviolability". Nor are there any reports on the question of what the difference is between the dignity of man and the dignity of the human personality or whether there is a difference at all. It should be noted, however, that Carlo Schmid, Josef Beyerle, Hans Nawiasky and Gerhart Feine were all lawyers. Only Otto Suhr and Fritz Baade were not lawyers. This is interesting for the later interpretation of the terms by the courts. It is questionable whether the non-legal participants were aware of the legal implications of their wording.

The second suggestion came from Josef Beyerle. He suggested "deleting the whole article". Article A, according to Josef Beyerle, should therefore read: "The dignity of the human personality is untouchable." He probably considered a creation clause to be completely redundant. However, this view did not prevail. The final report of the Herrenchiemsee Constitutional Convention retained the creation clause. Article 1 read: "The state exists for the sake of man, not man for the sake of the state. The dignity of the human personality is inviolable. (…)“

The report of Subcommittee I, which was concerned with the articles of fundamental rights, stated: "The most important fundamental right of freedom is that of respect for the dignity of the human person.”  The participants in the Herrenchiemsee Constitutional Convention were aware of the importance of Article 1. They knew that only through such a clear formulation could there no longer be any doubts about the significance of fundamental rights. Such insight had not existed in Germany a decade earlier. After the German Imperial Constitution was adopted in Frankfurt on March 28, 1849, the draft for the Bavarian people stated succinctly: "We will omit the section on fundamental rights in the following print, because these have long been known to everyone and have also been sufficiently discussed. A century later, the constitutional framers of the new Republic were unwilling to make the same omission.

The conclusion of the Herrenchiemsee Constitutional Convention was sent to the minister-presidents on August 30, 1948.

ReConFort / Linnemann