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FRENCH & GERMAN CONSTITUTIONS.
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Compares major provisions, methods & circumstances of adoption, individual rights, separation of powers.... More...
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Paper Abstract:
Compares major provisions, methods & circumstances of adoption, individual rights, separation of powers.

Paper Introduction:
FRENCH AND GERMAN CONSTITUTIONS This research paper describes and compares the principal provisions and features of the present constitutions of the Fifth Republic of France and the Federal Republic of Germany. There are important similarities and differences between the two constitutions reflecting the historical experiences of each nation with parliamentary democracy. Both constitutions were adopted under crisis conditions and were intended to remedy excesses of previous governments but the nature of those crises and failures were fundamentally different. In each, somewhat different methods were used to achieve a reasonable balance between individual rights, legislative prerogatives and effective executive action. Each constitution contains unique features. In practice both of them have worked out well.

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TheBasic Law guaranteed the rights and status of churches, which "are notdisestablished like the Catholic church in France."5 Article 16 of theBasic Law states that "persons persecuted for political reasons enjoy theright of asylum." In December, 1992, the "main political parties reachedagreement on . Similar provisions had been contained in the WeimarConstitution of 1919 and the Frankfurt constitution of 1848-1849, butHeidelmeyer says that "the principle of a representative democracy and of aparliamentary state was given greater emphasis than" under the WeimarConstitution.4 The French Constitution provided for a secular state. He said that clause plus one lifted fromthe Weimar Constitution which makes the Chancellor responsible for thepolicy of the government enabled Adenauer to disregard autocratically theviews of his Cabinet and "to run roughshod over the members of his owncoalition."15 Ardagh says that "new Republic's Constitution . To guard against another Hitler, the President andthe Chancellor must remain separate offices and ministers are granted acertain degree of latitude. 11Jean Lacouture, De Gaulle The Ruler (New York: W. 5John Ardagh, Germany and the Germans (New York: Harper & Row, 1987),228. 2Giles, 364. New York: Carroll & Graf, 1991.Hastrich, Edwin. Norton,1991, 13 , 191. 1 David Marsh, The Germans (New York: St. New York: W. The Chancellor, who is elected by the people,and his government can be removed from office by the Bundestag, which isalso directly elected. W. . The most important changes made by the French Constitution were tostrengthen the powers of the President, who had largely ceremonialfunctions under the Fourth Republic, and to eliminate the system ofproportional representation in the National Assembly, which had contributedto political instability. . The Basic Law provides for a FederalConstititutional Court. The Basic Law was approved bythe Council on May 8, 1949 by a 53-12 vote and went into effect on May 23,1949. TheBundestag is a strong constitutional body; however, Wighton points out thata key provision was inserted in the Basic Law which provides that a motionof censure against the Chancellor can only be carried if in the same motiona new Chancellor is nominated. . The President under Article16 was given plenary powers in case of a national emergency. a constitutional amendment to the law of asylum," whichtightened requirements to entry into Germany, especially for economicmigrants.6 Article 11 of the Basic Law contains a requirement that thebudget be balanced, which Hartrich says, harks back to the memories of thedisastrous inflation of the 192 s.7 Division and Separation of Powers Both constitutions provide for an independent judiciary, but not oneon the American model with the power by judicial review to declare anystatute unconstitutional. . Each constitutioncontains unique features. Adenauer. 8Ardagh, 4 8. The Locust Years. 14The Europa World Year Book, 1169. The German Constitution took the form of a Basic Law, grundgesetz,which was drafted in 1948-1949 by a Parliamentary Council under thechairmanship of the leader of the Christian Democratic Party, KonradAdenauer. BibliographyArdagh, John. New York: Herder Book Center, 1967.Lacouture, Jean. New York: Harper & Row, 1987.Crozier, Brian. The Parliamentary Council was appointed by a constituentassembly elected by German regional governments or lander pursuant to theLondon Six-Power agreement of the Western allies which had decided topermit the West Germans to form a republic. ThePresident is a figurehead. New York: St. The German Question. The German Basic Law has been amended more than 3 times. Bothconstitutions were adopted under crisis conditions and were intended toremedy excesses of previous governments but the nature of those crises andfailures were fundamentally different. hasproven far more effective than Weimar's."16 The extremes of undueconcentration and excessive fragmentation of power have been avoided. Its principle shall begovernment of the people, by the people and for the people." The first 19articles of the Basic Law emphasized the dignity of man, the development ofhis personality, the equality of all persons before the law, freedom offaith and conscience, equal rights for men and women (also contained in theFrench Constitution), and freedom of speech and religion. He was alsogiven the power to refer certain matters to a national referendum, a powerwhich De Gaulle used frequently and, Crozier says, arbitrarily.12 Althoughthe Constitution as of 1958 provided that amendments to it had to beapproved by both houses of the legislature, the National Assembly and theSenate, De Gaulle took his amendment to make future Presidents electible bythe people (rather than as previously by an appointed electoral college) toa national referendum in 1962. New York: Scribner's, 1973.Giles, Frank. 4Wolfgang Heidelmeyer, The German Question (New York: Herder BookCompany, 1967), 56. In practice both of them have worked out well. He ensures by his arbitration, the regularfunctioning of the public powers and the continuity of the state." TheConstitution provides for the supremacy of a "two-headed executive," thePresident, who was elected for a term of seven years, was given the powerto dissolve the Assembly, and the Prime Minister, who is appointed by thePresident and has duties to the legislature. This was not newfor the French. FRENCH AND GERMAN CONSTITUTIONS This research paper describes and compares the principal provisionsand features of the present constitutions of the Fifth Republic of Franceand the Federal Republic of Germany. In 1958, France was on the brink of civil war because of the internalcontroversy over the Algerian War. Conclusion By different methods based on the nature of the problems they facedand their histories, France and Germany have achieved constitutionalframeworks which balance well order and freedom. DeGaulle The Ruler. 13Lacouture, 97. Germany and the Germans. Martin's Press, 1984, 78. De Gaulle. De Gaulle regarded a strong presidency asessential to the effective functioning of the Republic. . Article 2 stated that the Republic "shall ensure the equalityof all citizens before the law without distinction as to origin, race orreligion. W. 12Brian Crozier, De Gaulle (New York: Scribner's, 1973), 599. London: Europa Publications, 1995, 1169-121 ; 1287-1327.Wighton, Charles. Ardagh says this innovation was important because"after 1945, it was seen that Hitler's lawyers had managed to exploit thesystem, and so the rule of law was clarified and strengthened, in order toprevent a reoccurrence of such abuses."8 Article 21 provides that theConstitutional Court can declare unconstitutional any party which seeks to"impair or destroy the free democratic basic order or to endanger theexistence of the Federal Republic." no amendments can be made that "wouldlimit its guarantees of human rights or alters the country's democraticbasis." Ardagh says the Basic Law is a "very liberal and well-balanceddocument that protects basic democratic freedoms while allowing curbs to beplaced on extremist parties."9 The Basic Law sets out a balance between the powers of the nationalgovernment (the Federation or Bund) and the Lander. 7Edwin Hastrich, The Fourth and Richest Reich (New York: Macmillan,198 ), 165. watchesover the Constitution. Protection of Individual Rights Both constitutions were based on the protection of fundamental humanrights. Martin's Press, 1987.The Europa World Year Book 1995 Volume I. In his speech ofJune 14, 1946 at Bayeux he said that the Head of State must "reconcile thenational interest" and "serves as an arbiter above politicalcontingencies."11 Article 5 provides that "the President . It was promulgated as law in October of that year. They must under Article 65 follow the generalguidelines laid down by the Chancellor but shall conduct the affairs oftheir departments autonomously and on their own responsibility. 6The Europa World Year Book 1995 Volume I (London: EuropaPublications, 1995), 129 . 16Ardagh, 4 3-4 4. The supremacy of theBund is established, but the Lander have jurisdiction over many internalmatters and acting through the upper house, the Bundesrat,which they elect,must consent to roughly half of all federal laws.1 French government hasbeen centralized for centuries. In each, somewhat different methodswere used to achieve a reasonable balance between individual rights,legislative prerogatives and effective executive action. 9Ardagh, 4 3-4 4. According to Lacouture,the effect of these reforms was to create "a strong executive and a shifttoward direct democracy at the expense of elected assemblies."13 Inpractice after 37 years, the Europa Year Book concluded that "the newsystem provided a strong, stable executive. After Charles DeGaulle took power in the emergency in June, 1958, a new constitution wasdrawn up by the executive in consultation with the National Assembly whichapproved it on June 3, 1958 by a vote of 35 to 163. Real power rested in the handsof the President, who strengthened his authority through direct appeals tothe people in national referendums."14 In Germany, more of a balance was sought between the powers of theexecutive which had been abused under Hitler and the legislature. 15Charles Wighton, Adenauer (New York: Conrad-McGraw, 1963), 95-96. . The Preamble to the French Constitution incorporated the Rights ofMan (1789). 3Giles, 363. The French constitution has beenamended only a few times, the most important amendment being the approvalon October 28, 1992 by a 58 percent vote in a popular referendum of theelection of the President by universal suffrage. Endnotes 1Frank Giles, The Locust Years (New York: Carroll & Graf, 1991, 367. The Fourth Republic, which hadundergone 26 changes of government since 1946 was on the verge of collapse. . There are important similarities anddifferences between the two constitutions reflecting the historicalexperiences of each nation with parliamentary democracy. Norton, 1991.Marsh, David. The Fourth and Richest Reich. . When thenewly elected lander in East Germany and East Berlin acceded to the FederalRepublic of Germany on October 3, 199 , the Basic Law, which had alwaysbeen provisional became the constitution of united Germany pursuant toArticled 4 of the Unification Treaty. New York: Macmillan, 198 .Heidelmeyer, Wolfgang. The Council of State later found his actionto be unconstitutional, but De Gaulle prevailed. It shall respect all beliefs . New York: Coward-McGraw, 1963.----------------------- 9 Methods and Circumstances of Adoption The Constitution of the Fifth French Republic was adopted by apopular referendum which approved it by a four to one vote on September 28,1958. Giles says that the French had been "caught since the Revolution in a love-hate relationship between freedom and authority."1 He says that theConstitution of 1946 had "proved to be disastrously unworkable."2 Underit, the political system "left the Assembly with sovereign power and thePresident of the Republic with severely limited authority."3 Germany wasfaced with a serious external threat, the Soviet Union, and sought torestore democracy after the collapse of the totalitarian dictatorship ofthe Third Reich. The Germans.

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