The 26th edition of the weekly newspaper Der Volksfreund (“The people‘s friend”), published on 16 December 1848, discusses issues surrounding the newly imposed Prussian constitution.
Imposed constitutions and absolutism
The front-page article “Die octroyierte Verfassung” (The imposed constitution) begins by establishing the distinguishing factor of an imposed constitution: It is imposed on the people by the crown, and has not been discussed and agreed upon by representatives of the people. Even so, the imposed constitution becomes the integral legal codification of the country, making it, according to the author, a symbol of the absolute power the crown holds. He states that one-sided grants of freedom and imposed constitutions are excesses of absolutism: Absolutism may give and take, may grant and refuse what and however it pleases. In describing absolutism, the author makes an interesting distinction: Constant repression, abuse of the law and tyranny are not inevitable consequences of absolutism, but absolutism leaves the door open for these problems to occur at any time. Even an absolutistic government may pass good laws, and even in absolutism, the will of the people has to be considered.
A responsible people
However, said government treats the people as if they were immature children. The author believes that the will of the responsible and accountable people must not only be considered, but also receive recognition and be enforceable. He goes on to describe who constitutes the people: Men who have fought and died to protect their country from enemies and to uphold the order within, men who pay taxes to fund the state, men who obey the law and men who have now, collectively, arrived at a point where they have developed a deeper understanding of what it means to be the people, what purposes a state has and which rights the individual should have in such a state. In conclusion, he finds that people who have arrived at this point of insight can no longer be kept under an absolutist rule. A responsible people wants freedom, equality, and autonomy – principles that should be rooted in and upheld by the constitution.
Governing according to the will of the people
What is most important to the author, then, is that the state is ruled according to these ideals and in accordance with the constitution. He continues by touching on a central problem one faces when trying to govern a country in this manner: It is easy to perceive the will of the people when a city constitutes the state one is governing. The people can come together and state their concerns, making it quite simple to discern the majority view. When a state expands over thousands of square miles and has millions of inhabitants, the issue becomes much more complex. Representatives have to be elected to speak in the name of the people. However difficult this may be, this very system differentiates a constitutional form of government form absolutism. A system, in which no law is made and no taxes are charged without the agreement of the representatives, in which no one interferes with the legal processes, especially the independence and jurisdiction of the ordinary courts, in which the government does not violate the law and in which neither the military nor civil servants impinge on freedoms granted by the constitution.
A comparison with England
Furthermore, the author believes that what is important in a state is not how the fundamental rights are codified, but that they are adhered to. He draws a comparison to England, stating that freedom there does not necessarily result from the Magna Carta, the Bill of Right or the Reform Bill being an exemplary codification, but from the fact that the existing freedoms and laws are inviolable. Passing a law without the approval of Parliament would be unimaginable to an Englishman, and the Crown last used their right to veto a law in 1717, to name only a few examples the author gives. In all his admiration for the English system, the author still acknowledges that there are different issues in securing newly won freedom, but these, too, could be addressed by taking cues from a system that already functions. A brief excerpt shows the authors ideals and wishes for life in such a system:
“The first minister in his hotel must be as safe as the poorest democrat in his basement. But the first minister may no more lay hands on law and freedom than the poorest democrat may violate an established law without punishment.”
To be continued…
In a final section of the article, the author undertakes an even more in-depth analysis of the legislative process surrounding and leading up to the constitution being imposed. He finally summarizes by stating that his article will have to conclude after having analysed the imposed constitution from a political as well as a legal standpoint. However, he promises there will be more on the topic in the following days, especially concerning the prospect of revisions to the imposed constitution and the contents of the constitution.
This source, as well as some of the further articles on the topic promised by the author, is accessible from our database on constitutional formation at sources.reconfort.eu. Much like the original article promises, we too will further analyse this topic in the coming weeks by taking a closer look at the December 23 issue of the Volksfreund.