Rebuilding the German Constitution, II

On May 8, 1949—the fourth anniversary of unconditional surrender—the Parliamentary Council adopted at Bonn the Basic Law for the Federal Republic of Germany. This date was chosen intentionally to remind the German people that this provisional constitution is a way-station on the road out of the chaos which the collapsing Hitler régime left behind it. Any consideration of this Basic Law should start from the fact that the charter is not the creation of a free people, and that it will have to function within limits, both territorial and functional, which severely handicap its chance of becoming a genuine constitution, securely anchored in the basic convictions of the people. Its limits territorially are imposed by the refusal of the Soviet Union to permit the Germans living in their Zone of Occupation to express themselves freely concerning the charter. This raises the presumption, confirmed by other evidence, that these Germans would, by a considerable majority, accept the Basic Law if given a chance to do so. The charter's functional limits are imposed by the Western Allies, who decreed three basic limitations upon the German people's autonomy and independence: (1) the Occupation Statute, (2) the Ruhr Statute, and (3) the Inter-Allied Security Board. Of these, the Occupation Statute is much the most important, and encompasses the other two by its provisions. This is shown by the fact that the Letter of Approval, issued by the Military Governors on May 12, 1949, notes that acceptance of the constitution is premised upon the understanding that all governmental power in Germany, federal, state, and local, is “subject to the provisions of the Occupation Statute.â€