The aim of the National Assembly, which first met in May 1848 in Frankfurt, was to create a German national state. This was to be achieved by the enactment of an unified German constitution. For such a project to succeed, it was necessary for the adopted constitution to be valid and recognised across the many individual German states.
But who should be the bearer of the necessary constitutional power, the pouvoir constituant? Could the National Assembly elected by the people claim this right exclusively for itself? Or could it exercise the constitutional power only together with the individual states and their governments?
This question not only determined the negotiations of the young parliament, it also arose in the individual German states and was to be one of the greatest areas of conflict in the inner-German constitutional debate until 1849 and the failure of the revolution in the same year. While the Frankfurt National Assembly assumed the sole claim to constitutional power, the state governments, such as the Bavarian and Saxonian, claimed the right of co-determination for themselves.
The team of the “ReConFort – Reconsidering Constitutional Formation” research project led by Prof.Dr. Ulrike Müßig at the University of Passau was able to gain valuable insights into the reception of this controversial issue in the German press and to compile previously unpublished documents in a database. The digitized texts include an article from the Bamberger Zeitung of September 13, 1848, published in Bavaria, which critically examines Bavaria´s claim that the validity of the resolutions passed by the National Assembly - especially the constitution still to be drafted - in Bavaria is dependent on the approval of the Bavarian government.
This perception of the Bavarian government is strongly criticized by the editor of the Bamberger Zeitung. If it were up to the Bavarian estates and the “ministerial magnanimity”, which of the rights granted in Frankfurt could also be granted to Bavarian citizens, he said, the civilizing achievement of popular sovereignty would be severely limited and the unity of the German nation as such would not only be endangered, but impossible from the outset.
These endeavours of the individual state governments were already attempted by the deputies of the National Assembly in the 8th session of the parliament on May 27, 1848, to which the author of the text refers. In it they declared that all provisions of constitutional law of the individual states must be measured against the all-German constitution to be developed and that imperial constitutional law was superior to constitutional law of the individual states.
Should it nevertheless be legitimate to measure the decisions of the Frankfurt National Assembly against the constitutions of the numerous German individual states and to put their implementation at the disposal of the altogether 34 sovereigns, the National Assembly would not be able to establish the longed-for national unity as a constitutional assembly, the editor of the Bamberger Zeitung judges.
The journalist is also critical of a right of objection of the individual states in exceptional cases, as in his eyes the lack of limits to this power would lead to its misuse. “Reach out your finger and your hand will follow”, he sketches this scenario plastically and impressively.
So, he concludes at the end of his article, there are only two possibilities that would be likely to arise, especially in view of the past 36 years:
If one were to support the goals of unity, freedom and greatness of the German nation, one would have to fully recognize the decisions of the central power. If, however, one were against precisely that renewal and reform, even longing for the already known state of fragmentation and powerlessness, one could leave it to the individual states whether and to what extent they recognized the decisions of the National Assembly.
That this conflict between the state governments and the National Assembly on just that question, which was unresolved until the end, was to be fatal, is shown in 1849 in the failure of the constitution to gain the approval of the individual states and the resulting failure of the entire revolution. The powerlessness predicted by the Bamberg journalist already one year before for this case was to happen in the coming years.
For more interesting information and an unique collection of sources on the cross-border interplays between constitutional process and public debates in late 18th and 19th century visit the ReConFort-database.