Memorandum by the Counselor of Mission at
Berlin (Riddleberger) to the United States Political Adviser for
Germany (Murphy)
secret
Berlin, March 3,
1949.
Subject: Military Governors’ Consideration of
Draft Constitution.
The three Western Military Governors met three times in Frankfurt
on March 1–2, 1949 and devoted the major part of their
deliberations
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to an
examination of the draft basic law as developed by the
Parliamentary Council at Bonn. The Military Governors had before
them at their first meeting on March 1 the report of the
Political Advisers dated February 24 which was cabled textually
to the Department in Frankfurt’s 144 and 145 of February
25.3 The draft
constitution had been previously transmitted to the Department
by your Frankfurt Office under date of February 12, 1949.4
General Clay opened the
discussion on the Political Advisers’ report in stating that he
thought the report was a good one which clearly expressed the
differences between the Military Governors. Koenig at once replied in a
statement which was severely critical of the draft constitution.
He argued that under cover of federal appearance, the Germans
have constructed a draft which completely opens the way for
reestablishment of a highly centralized government. The work at
Bonn was not sincerely federalist in nature and would be
condemned by those who wanted a truly decentralized government.
The Military Governors should therefore declare the Bonn draft
incompatible with the London decisions and disapprove it.
However, as Koenig did not
wish to see an immediate break down, he was prepared to envisage
amendments and corrections which might make possible acceptance
of the constitution. He was also prepared to concentrate upon
amendments to articles which, while few in number were essential
to a federal state.
General Clay then
reminded Koenig that as
there was no official. German constitution before the Military
Governors there are two ways of proceeding. The first would be
to defer discussion until the Parliamentary Council formally
submitted the constitution which would then be a public document
and the Military Governors together with their governments would
have the reaction of constitutional experts throughout the world
on the work which had been done in Bonn. The Military Governors
could then suggest that the Germans be told to finish their work
and the discussion would be on a public document. Koenig stated at this point that
while Clay’s principle
was probably a good one it was not practicable in that it would
lead to a test of strength between the Parliamentary Council and
the Military Governors. Therefore, it was wise to move in a more
conciliatory way and he would agree to discuss the report of the
Political Advisers. Clay
said that his second point would be a discussion of the report
and that he was prepared to do so. He, however, reserved the
right, if no agreement was reached by the Military Governors, to
tell the Germans to go ahead and finish the constitution.
Robertson agreed with
Clay that the
Germans have the
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right
to continue but favored giving the views of the Military
Governors to the Germans now if possible. He thought it would be
tragic to reject the constitution and it must be remembered that
the document would have to be ratified. If the Germans accepted
modifications it would have a better chance of ratification.
This proposal of General Clay’s to have the Germans finish their work and
publish the constitution obviously took the French by surprise
and in my opinion was influential in modifying materially their
negative attitude toward the document. The Military Governors
then proceeded to discuss the report paragraph by paragraph.
Koenig led off by
making strong objections to Articles 36 and 36(a) of the constitution. The tenor of his argument was
that there should be only two categories of federal legislation:
(1) exclusive, as in Article 35, and (2) nominal, as in Article
36(a). Furthermore, Article 36 (a) should embody the formula devised by
the Political Advisers for Article 36(2). General Clay responded that no
government could operate under such restrictions. He could
accept Article 35 and agreed that Article 36 lacked clarity and
should be amended to give legislative powers on the matters
enunciated therein when they clearly affect more than one state.
General Robertson
suggested that a compromise might be found by transferring the
redraft of Article 36(2) to the head of the article and then
combining Articles 36 and 36(a). After a
somewhat extended discussion as to the effect of this it was
eventually agreed that this compromise might be acceptable and
the question was passed to the Political Advisers for
drafting.
Paragraph 2 of the report respecting police powers was accepted
in principle on the understanding that if the occupation
authorities are ultimately responsible for security the powers
in Article 118(c) cannot be exercised
until specifically approved.
Consideration was then given to the question of financial powers.
Koenig stated this was
a most important subject and that he concurred in the
suggestions of the Political Advisers with one reservation. He
believed that the federal government should administer only
federal taxes and not concurrent taxes which should be
administered by the Laender even if the
federal government takes over entirely concurrent taxes. He
stated that if this proposal was acceptable, the French would
abandon their reservation on occupation costs. Robertson strongly urged that
the federal government should have the right to collect taxes
which it legislates and that once it has decided to take over a
concurrent tax it becomes a federal tax. Such was the provision
of the Letter of Advice. At this point Clay proposed the formula
which eventually led to agreement on the financial articles. He
said that except in the field of excise, income, inheritance and
gift
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taxes, all other
concurrent taxes should be administered by the Laender. By skillful and persuasive argument, and with
frequent reference to our own tax system, he eventually
convinced Koenig that
federal taxes should be administered by federal administration.
He argued that the French desire to avoid federal tax
administration could only lead to having the federal government
interfere more and more in the financial affairs of the Laender in that it would be giving
instructions to the Laender financial
authorities on taxes over which it exercised jurisdiction. If
the French wanted financial autonomy for the Laender they could not have it both ways by opposing
federal administration of federal taxes while simultaneously
opposing federal instructions to Laender
finance administrations. It was far better in his opinion to
segregate the taxes and let federal taxes be administered
federally and state taxes administered by the Laender. Koenig
eventually agreed to this line of argument subject to draft.
With respect to the independence of the judiciary the UK Military
Governor was not entirely satisfied with Article 129(1) and
wished to draw the attention of the Parliamentary Council to
possible safeguards in connection with the dismissal of judges.
After a short discussion this was agreed.
On the powers of the federation to establish its own agencies and
the French reservation thereto, General Clay made a very cogent
argument to the effect that there is less danger in [allowing]
federal agencies to enforce federal law than there is allowing
the federal government powers to give orders to the states. A
long exchange ensued between him and Koenig in which Clay by drawing upon American precedence [precedents?] eventually succeeded in
obtaining Koenig’s
agreement to withdrawing the French reservation provided the
drafting on Articles 36 and 36(a) was
satisfactory.
With respect to civil service it was eventually agreed that if
the Germans decided to retain Articles 27(b) and 62 in the constitution they must conform to the
principles enunciated in the Aide-Mémoire.5 The
Military Governors do not insist, however, that the constitution
contain such provisions as the question can be dealt with by
legislation.
On the question of Laender reorganization,
it was decided to repeat precisely what the Ministers President
had been told on July 20, 1948 and to reiterate that the
position is still the same.6
Incidentally, Clay
informed Koenig in a
meeting on March 2 that he intended to raise this question at
the next meeting of the Military Governors in order to get
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a decision on what the
Germans can be told respecting the Ministers President’s
proposal on Wuerttemberg–Baden.
The debate then turned to a formula for Berlin. Koenig announced the French
opposition to Berlin’s inclusion but indicated some desire to
move for a compromise. Here again Clay came forward with a proposal which was
eventually accepted and which is incorporated in paragraph 10 of
the statement to the Germans. There was some discussion of how
many Berlin representatives might attend but for the time being
the question is left over. In any case it would not be more than
what Berlin would be entitled to in proportion to its
population. At this point the discussions on the constitution
were concluded and it was arranged that the Political Advisers
would meet in the afternoon to be followed by another session of
the Military Governors in the evening on March 1.
At the evening meeting the Military Governors had before them a
draft statement to be communicated to representatives of the
Parliamentary Council which had been prepared by the Political
Advisers. This statement was cabled to the Department by our
Frankfurt Office on March 1.7 Additional discussion
followed on paragraph 1 of Article 36 as redrafted by the
Political Advisers. Koenig
was still holding out for the French brackets and Clay suggested the compromise
proposal which emphasized the right of the Laender to retain legislative authority in the fields
listed except where the matter clearly involved more than one
Land.
On the financial provisions, Koenig returned once more to the charge by
claiming the federal power in concurrent taxes was still too
large. Clay eventually
obtained Koenig’s agreement
by stipulating that the income tax would be administered by
federal authorities to the extent that such a tax is for federal
purposes. This compromise disposed of the financial provisions
although Koenig was still
protesting that too much taxing power was given to the federal
government.
The other paragraphs of the statement were agreed to down to the
final one dealing with Berlin. Koenig again balked at Berlin participation in
federal legislature and it looked momentarily as if the
discussion would break down on this point. Clay then stated that such
participation was not prohibited by the London decisions but he
was not disposed further to argue the matter. He proposed that
the Parliamentary Council be informed that agreement could not
be reached and the decision was up to it whether to adopt the
constitution in plenary session. Faced with this statement,
Koenig then said that
he would not object to having a small number of representatives
designated to attend. Clay stated he could accept “designated” but
could not forbid
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consultation and pointed out that it would be difficult to
prevent attendance in any case. Koenig promised an answer by midnight.
Following this evening session the Political Advisers reconvened
on the morning of March 2 to prepare a clean draft of the
statement to be communicated that same day to representatives of
the Parliamentary Council, who had been advised the night before
to come to Frankfurt. This draft was ready for consideration by
11 o’clock on March 2, 1949.8
At the meeting of the Military Governors Clay stated he was ready to
accept the statement as a whole. Robertson was likewise prepared to do so but
wished to clarify the interpretation of paragraph 10 on Berlin.
He said that he wished no misunderstanding and that his position
was that the number of representatives is not determined and the
Berlin representatives can speak. His understanding of the
French interpretation was that the Berlin representatives would
not speak. If the Germans inquired about this, it was agreed
that no definite answer would be given. The Military Governors
then discussed the type of statement which Robertson would make if the
representatives of the Parliamentary Council inquired whether
the statement must be accepted in its entirety. The line that
Robertson would take
was reported from Frankfurt by telegram of March 2, 1949.
The Military Governors then discussed the question of the
electoral law and their decision was likewise reported in the
same telegram. The text of the electoral law was previously
transmitted from Frankfurt.
