Kanzler des deutschen Reiches

Is Germany Sovereign?

In the wake of revelations of pervasive NSA snooping in Germany, Germans have been asking whether or not their country is actually sovereign. In a country filled with foreign armies since 1945, this seems a reasonable question. There is a related constitutional question: Was the 1949 Grundgesetz (Basic Law) any kind of constitution (Verfassung) at all? Barely two decades ago, West German political parties, interest groups, and state bureaucracies hurriedly incorporated (reconstructed[1]) the former DDR (East Germany) into their system. At the time, a German colleague of mine commented on the West German establishment’s coldly calculated failure to abide by the clear implications of Article 146 of the Grundgesetz. That Article read: “This Basic Law shall cease to apply on the day on which a constitution freely adopted by the German people takes effect”[2] (standard translation).

Nothing like that has happened. And there is yet another question: What exactly is the status and role of the much-touted “federalism” found in the Basic Law? With these puzzles in mind, a brief historical tour of German federalism will be in order.

German Federalism from HRE to Weimar

The Holy Roman Empire of the German Nation claimed the prestige and authority of Christian Rome and its Carolingian successor.[3] It “ruled” for almost a thousand years, often lightly, owing to lack of physical power at the center. In 1941 Heinz F. H. Eulau surveyed theories of the empire devised by Althusius (1563-1638), Hermann Conring (1606-1681), Ludolphus Hugo (1630-1704) (who perhaps anticipated James Madison’s “dual sovereignty”), Pufendorf (1632-1694), and Leibniz (1646-1716) (“Theories of Federalism under the Holy Roman Empire,” American Political Science Review [APSR], August 1941).[4] Interestingly, Eulau comments that Leibniz rejected Hobbes’ (1588-1679) category of absolute sovereignty as shedding no light on the German Empire (Eulau, “Theories of Federalism,” 656n).

Voltaire’s famous gibe that the H.R.E. was not Holy, Roman, or an empire, rested precisely on this “failure” to exemplify the sovereignty of Bodin and Hobbes. This “lack” was an advantage because it left the empire in the background (so to speak) as a moral and legal authority of last resort (as John G. Gagliardo reminds us: “Cosmopolitanism and Federalism,” Continuity, 1982).[5] By attributing modern sovereignty to the empire’s member states, the Treaty of Westphalia (1648) undermined both the empire and any theory reflecting its structure. (Benno Teschke, The Myth of 1648 [2003], 241-243, discusses some of the ambiguities.) The emerging European states-system sidelined both Empire and Papacy, leaving in place no pan-European authority (which is not the same thing as power: see Frederick D. Wilhelmsen, “Political Philosophy of Alvaro d’Ors,” Political Science Reviewer, Spring 1991, 155-173).

 The Empire lingered on, dismissed by practical men but not unloved (Gagliardo), until 1806, when French military power created the Confederation of the Rhine with thirty-seven members – the “Third Germany” as counterweight to Austrian and Prussia — under the “protection” of Napoleon; the French did so by eliminating at least 200 formerly independent German microstates and feudal entities.[6]

The Problem of German Unification

In their war of liberation, Germans united with Napoleon’s many enemies in a counterattack[7] on the French imperium. The whole revolutionary episode stirred up zealous German nationalism. Remodeled by the Congress of Vienna (1815), the streamlined Confederation remained and now included Austria and Prussia.[8] In the circumstances, many politicized Germans hoped for greater unity against likely foreign threats. But here the problem of Austria stood out. Partisans of a grossdeutsch (Great German) union wanted to include Austria; their kleindeutsch (Little German) opponents meant to exclude her. If Austria was included, the question of the status of the Habsburgs’ non-German holdings naturally arose (Hungary and sundry Slavic territories). Could they be parts of a German union? The specter of a very unbalanced federation loomed. There was also a divisive Protestant vs. Catholic dimension to these questions. (See Theodore Hamerow, Social Foundations of German Unification, 1858-1871 [1972].)

The Frankfurt Assembly that met in the heat of the 1848 Revolution could not resolve the issue, nor yet another structural dispute that cut across the first one. Would a united Germany be a Staatenbund or a Bundesstaat — a loose confederation or a tightly bound federation? (An old joke calls a Staatenbund “a bundle of states” and a Bundesstaat a “bundle-state.”) Prussian Chancellor Otto von Bismarck wanted, and eventually achieved a kleindeutsch, Prussian, and Protestant solution: first, the North German Confederation (1867) and later, the Second Empire (from 1871), which combined a degree of local (often royalist) sovereignty with Prussian hegemony. (We pass over the wars Bismarck kindled along the way.)

When the old Confederation Diet moved against Prussia in June 1866, Bismarck proposed what amounted to secession and re-confederation[9] (cf. America 1786-1789). With respect to the 1867 constitution of the North German Confederation[10] he wrote that the drafters “must hold to confederate forms while giving it in practice the nature of a Bundesstaat, through elastic, homely,[11] but wide-reaching expressions” (quoted in Gottfried Dietze, “Federal Republic of Germany,” Journal of Politics, February1960, 127n; my translation and italics).[12] (Bundesstaat = “federation” in a Yankee sense.)

The Second Empire as a Federation[13]

The constitution (Verfassung) of the Second Reich (1871) was essentially that of 1867, modified by treaties between the northern Confederation and the southern German states, Baden, Hesse, Bavaria, and Württemberg, which had rallied (more or less) to Bismarck’s side in the Franco-Prussian War (1870-1871). Max von Seydel – a German disciple of John C. Calhoun –saw the system as confederal, but most German authorities took it for a post-1865 American “federation”: ultimately unitary but federal in form.

The Reich (realm) now consisted of twenty-five states plus the imperial territory of Alsace-Lorraine (lately detached from France). Prussia’s Protestant King was the hereditary executive (Kaiser). Historian Koppel Pinson observes that the “entire internal administration of police, the judiciary, fiscal matters, and education remained in the hands of the separate states” (Modern Germany, [1966], 158). To enlist the four southern states in his war in 1870, Bismarck guaranteed them numerous reserved rights. The King of Bavaria kept his own “army, diplomatic service, railway and postal systems” (Golo Mann, The History of Germany Since 1789 [1968], 192), as did the King of Württemberg (Gordon Craig, Germany: 1866-1945 [1978], 34, 41). Along with Saxony, Bavaria and Württemberg retained diplomatic representation abroad.

Bismarck’s would-be Bundesstaat was still something of a patchwork; but he was a patient centralizer. Over time, the sheer weight of Prussia would tend to convert the federation into a Greater Prussia.[14] (Indeed, the predominance of Prussia calls to mind Leopold Kohr’s theorem that unbalanced federations prove unworkable.[15]) With rather bad timing, Old Right journalist John T. Flynn wrote in 1944 that it was wrong to think that Germans had “always lived under a highly centralized, autocratic government” (As We Go Marching, 78), since the German Empire’s central government (1871-1918) had only had marginally greater power than the U.S. government. It was not the frightful despotism of the older Allied propaganda (1914-1918).

John W. Burgess, an East Tennessee Unionist and a major figure in American-Hegelian political science, made this point decades earlier. In 1888, Burgess wrote on the German Kaiser as a chief executive, who oversaw foreign affairs, handled diplomacy, and could declare offensive war. To do the last, however, he needed the consent of the Reichsrat (Federal Council). As King of Prussia, he controlled seventeen votes; but for war he needed thirty votes [out of 58]. Thus, he had to have the backing of at least three other states; but the minor princes[16] dreaded wartime centralization and the Emperor could not assume their cooperation. Overall, Burgess concluded, there were real limits on the arbitrary power of the supposed German autocrat – more limits, we can easily say in 2014, than could ever inconvenience a 21st-century American President. (“Tenure and Powers of the German Emperor,” Political Science Quarterly, June 1888.[17])

Weimar Centralization

As we might expect, it was war and revolution that permitted others to finish the Prussian drive toward a unitary state. (We pass over the details of the first European suicide attempt, or World War One.) The strains of war discredited old regimes everywhere (and rightly so: see Gabriel Kolko, Century of War [1994], 3-179). In Germany, the Kaiser’s government collapsed and a coalition of Catholic centrists, liberals, and social democrats drew up a centralizing constitution for the activist and partly socialist Weimar Republic.

In 1920, Ernst Freund reported on “The New German Constitution.” He seemed happy that the former states were now merely Länder (“lands”) and that Bavaria’s reserved rights were gone. He affirmed the United States as a “successful” federation blessed with that “imperial or national supremacy, common to all federal systems” [since 1865] (my italics). He treated lightly the possible suspension of civil liberties under the now famous Article 48, while noting that “nominally” at least, the United States did not have such a provision (Political Science Quarterly, June 1920[18]). Alas, it was these very emergency powers under Article 48 that the National Socialists (NS) exploited in 1933.

Writing on “Legal Theory in the Collapse of Weimar,” law professor David Dyzenhaus focuses on Article 48. Between July 1930 and July 1932, Reich President Paul von Hindenburg used emergency powers under that Article several times to solve immediate problems. (These precedents assisted Hitler’s consolidation of power the next year.) Hindenburg’s decree of July 20, 1932, responding to disorders in Prussia, entailed “execution,” i.e., complete takeover by reactionary Reich officials of Prussian police and administration.[19] The Social Democratic government of Prussia — the largest and most populous Land — “considered armed resistance,” but went instead to the Reich Supreme Court. There Carl Schmitt argued for the Reich and Hermann Heller (a Kantian social democrat) argued for Prussia. (Schmitt’s “decisionist” arguments[20] somewhat resembled views later held by American Cold War liberals and their recent successors.) On October 25, 1932, the Court came forth with a great conceptual muddle while concluding that the German President could indeed coerce a Land. Article 48 could work to create a unitary state (APSR, March 1997).[21]

In September 1939 the European civil war was renewed.

Drastic Proposals in the Mid-1940s

In the last years of the war there was much discussion about what to do with Germany after Allied victory. Revenge was in the air, along with a demand that this sort of thing never happen again. These years were filled with plans for the total disarmament of Germany, mass sterilization of Germans, etc. A rash of Germanophobic books like Theodore N. Kaufman’s Germany Must Perish (1941), Paul Winkler’s Thousand-Year Conspiracy (1943), and Richard M. Bricker’s Is Germany Incurable? (1943) argued their case.[22] (There were probably even more proposals to eradicate the Japanese.)

Slightly Milder Plans

Slightly more respectable was the plan of U.S. Treasury Secretary Henry Morgenthau and his assistant Harry Dexter White: here Germany would de-industrialize and Germans would become subsistence farmers.[23] (The interim loss of life this program might entail was waved aside.) According to political scientist James L. Payne, American policymakers’ original overall aim was to “punish Germany and deny it any war-making potential.” The Allies initially failed to provide currency for the collapsed German economy and the “U.S. occupation harassed and delayed the formation and functioning of political parties.” As such, German “democracy was not a serious goal of the occupation” or of the Joint Chiefs of Staff. (“Did the United States Create Democracy in Germany?” Independent Review, 11 [2006].) [24]

Röpke and Hayek

The proposals of free-market economists Wilhelm Röpke and Friedrich von Hayek are rather interesting. In The Solution of the German Problem (1946), Röpke denied that Germany had ever had a proper federal political balance owing to the fact that, centuries before, certain local magnates created powerful bureaucratic, feudal-absolutist states, most notably in Prussia. Later, Prussia industrialized by fostering monopolies, cartels, economic concentration, and proletarianization, and began imposing this pattern on the rest of Germany.

For Röpke, it seemed possible in 1946 to overthrow this feudal-industrialism. The Allies should supply Germany’s historically missing (bourgeois) revolution by dissolving Bismarck’s central state in favor of the Länder. Since local government had outlived National Socialism, the Allies could revive the constituent German states by negotiating peace treaties with them, severally, and so terminate the Reich. As to a new German political structure, a working compromise was needed between a Staatenbund (confederacy) and a Bundesstaat (“federation” in the unfortunate U.S. sense).[25]

In his introduction to the British edition of Röpke’s book,[26] Hayek (in general agreement with Röpke) hoped the Allies would impose “complete free trade, external and internal” on Germany. This would overcome the economic drawbacks of decentralization and prevent the grinding poverty envisioned by planners of the Morgenthau type. Free trade would provide “the most effective economic control” and necessitate “a high degree of specialisation,” making Germany “dependent for her own prosperity on the continued exchange with other countries.”[27]

Legal Status of Occupied Germany

But what bearing did international law and the famous “laws” of war have on the future of Germany? As of 1994, exiled German jurist Hans Kelsen thought belligerent occupancy an inadequate license for “fundamental reform” by occupying powers. Given German debellation (total defeat), the Allies could conceivably create a condominium, rule directly, and reorganize Germany (“International Legal Status of Germany,” American Journal of International Law [AJIL], October 1944).[28] In 1947 F. B. Schick noted some irregularities in Allied conduct. No German state consenting, the Allies acted unilaterally, outside international law, in organizing the Nuremberg trials. The men on trial were not POWs seized during “military operations.” Given that all legislative, judicial, and executive powers normally those of a German government were vested in the Allied Control Council, that body should have created a competent German court for the purpose (“Nuremberg Trial and the International Law of the Future,” AJIL, October 1947).[29]

Two years later, Pitman B. Potter asserted that the Allies had acted on a self-issued “right” in reforming Germany and Japan in the name of preventing future wars (“Legal Bases and Character of Military Occupation in Germany and Japan,” AJIL, April 1949).[30] In 1951, Kurt von Laun claimed that short of formal annexation, German sovereignty still existed (albeit in suspense). Since only the German armed forces had capitulated, no German government or state had surrendered unconditionally; yet after the capitulation the Allies ignored the Hague Regulations and “destroyed the old political and economic order and set up a new one.” This they did on “their free decision,” but a decision to reform another state’s social order could not exempt the reformers from the legal rules (“Legal Status of Germany,” AJIL, April 1951).[31]

Americans, Cold War, and Grundgesetz

International lawyers notwithstanding, the Allies did as they pleased. Initially, plans to weaken and punish Germany dominated, but Allied policymakers backed off them, as they realized that drastic measures in Germany threatened European economic recovery.[32] Underlying clashes of economic and other interests between the Western allies and the Soviet Union came to the fore, and Allied planners decided to merge the American, British, and French occupation zones into a new West German political entity. This new “state” would not be very independent[33] and would serve as a Western asset in the emerging Cold War.

Ensuing events shed light on the official U.S. conception of federalism: military commanders, New Dealers, bureaucrats, and diplomats shared the received American notion that proper federalism is simply a costume worn by a unitary state.

In June 1949, political scientist Carl J. Friedrich reported on the West German constitutional process. The Allies, he said, had faced immovable facts on the ground: two major West German political parties — the Christian Democratic Union (CDU), based on Catholic peasants, and the Social Democratic Party (SPD), based on Marxist trade unionists — and the survival, after the Einsturz (collapse), of the ideal of a strong, neutral state. The Potsdam Declaration (August 2, 1945) had proposed local elections, “decentralization,” and no central government “for the time being.” U.S. Joint Chiefs of Staff Directive 1067 (July 11, 1947) called for “federal German states (Laender) and… a central German government with carefully defined and limited powers and functions. All powers shall be vested in the Laender except such as are expressly delegated to the Central Government” (my italics). American plans were detailed and U.S. officials tinkered with “the kind of federalism to be established.” On July 1, 1948, Allied authorities proposed to let the minister-presidents of the Länder convene a constituent assembly. An Occupation Statute would accompany any constitution that body drew up.

This “constitution” (Friedrich continued) would be a provisional basic law “ratified by the parliamentary bodies in the several states.” The Occupation Statute was “a statement of reserved powers” and a “grant of the remaining legislative, executive, and judicial powers to the German governments, subject to review by the Allies” (my italics). Germans wanted the Occupation Statute to respect human and civil rights already acknowledged in Länder constitutions, but the Allies were not terribly interested. On the other hand, the Allied military governors wanted the states to have priority in many fields – civil and criminal law, shipping, and economic regulation (“Rebuilding the German Constitution, I,” APSR, June 1949).[34] Meanwhile, the Grundgesetz had come into force on May 24, 1949.

In August 1949, Friedrich concluded his report. According to the Basic Law’s Preamble, the German people (singular) “in the Länder” (all eleven are named) established it (my italics). Friedrich   stressed again the document’s provisional character. The resulting system, he wrote, was “about as federal as Switzerland and the United States [!], less federal than the German Empire and the British Commonwealth…” West Germany was thus “a ‘federally united people’… composed of the peoples of the several states” — including, someday, those in the Soviet zone (my italics).[35]

Friedrich noted the Basic Law’s clever game of stating rights and then somewhat negating them in the same Article (e.g., conscription).[36] He commented that the demise of Prussia (bulwark of Weimar democracy) left a more balanced federation. Federation (Bund) and states (Länder) were sovereign in their own spheres and all powers “not specifically granted” were residual in the Länder. There were exclusive and concurrent legislative jurisdictions. Exclusive federal powers existed over foreign affairs, international commerce, etc.[37] The Basic Law provided for Auftragsverwaltung (delegation), in which states enforce federal law. Federal authorities could call on the police forces of the Länder in emergencies (cf. U.S. militia clauses) (“Rebuilding the German Constitution, II,” APSR, August 1949).[38] Political scientist Gottfried Dietze evaluated the Federal Republic (BRD) on its tenth-anniversary. He praised the “moderation” of the Basic Law and made the best he could of standard Rechtsstaat (Rule of Law) rhetoric and alleged natural law tendencies in West German jurisprudence (“Federal Republic of Germany,” Journal of Politics, Feb. 1960).[39]

Intervention by a Philosopher

In 1966, the distinguished German philosopher Karl Jaspers scathingly denounced the West German system from the standpoint of Kantian republicanism[40] (English: The Future of Germany [1967]). He noted that political parties were becoming “organs of a state which itself reverts to the authoritarian way of ruling subjects.” The Basic Law’s draftsmen had seen the people as “dangerous; they were to play as small a part as possible.” For this reason, West Germany had “elections that decide nothing and merely acknowledge the existence of the oligarchy.” The entrenched party oligarchy was “insensitive to its joint lack of shame.” (This sounds familiar somehow.)

Equally toxic was the Establishment’s “anti-totalitarian security” syndrome. Forever fretting aloud about Hitler’s return, the Establishment substituted institutional tinkering and historical “necessity” for human responsibility. Fearful of totalitarian movements arising from within the people, the rulers wrapped themselves in national security. Jaspers didn’t buy it: “The cry for security mostly hides definite interests.” For Jaspers, genuine security vanishes precisely “where freedom itself is destroyed by false freedom, by a proposed legal abolition of legality.” (Americans have heard many such cures in recent years.)

The West German state now posed the same threat to liberty as anti-state forces did under Weimar. Jaspers thought the proposed Emergency Laws (Notstandsgesetze) would complete the oligarchs’ betrayal of republican liberty. Despite idle talk about building safeguards into these statutes, “there is no way to prevent an abuse of such laws, for their principle is to exclude controls” and “the principle of total force reappears behind any restrictive clauses.” The laws were really “an authorization to repeal the constitution’s guarantee of basic rights.” They should, legally, require a formal amendment to the Basic Law. The laws passed in 1968. The Allies – still holding a vestigial veto power over German legislation — were consulted. They didn’t mind.[41]

We may leave later developments out of account for present purposes.

Comparative Federalism

Bismarck’s advice to the drafters of the constitution of the North German Confederation was to “hold to confederate forms while giving it in practice the nature of a Bundesstaat, through elastic, homely, but wide-reaching expressions.” Historian Gordon Craig writes with respect to that very same 1867 constitution, that “a fair number of German politicians, charged with protecting the interests of their states… failed to understand it until after they had accepted it and had learned belatedly that they had misinterpreted clauses that were to affect them very nearly” (Craig, 38-39).

Here was a very American “federal” moment.

Let us recall the language of JCS Directive 1067 (July 11, 1947): a “central German government with carefully defined and limited powers and functions.” This seems tame enough; but the assumption that all powers were “vested in the Laender except such as are expressly delegated to the Central Government” is striking. Here was a generation of Americans educated to believe that the word expressly — had it appeared in our Tenth Amendment — would have spelled utter doom; yet they found this word suitable for the Basic Law of a subordinate ally.

The “grant of the remaining legislative, executive, and judicial powers to the German governments, subject to review by the Allies” calls to mind the (failed) “national” veto James Madison proposed to the Philadelphia Convention, although here it is extra-national.

The Grundgesetz does lack some of Mr. Madison’s trademarked indirection. According to the Basic Law’s Preamble, the German people (singular) “in the Länder” established it. Article 38(1) further assumes a single, “federally united” German people – East Germans included. Adoption by two-thirds of the (Western) Länder would make the Basic Law obligatory in all of them. The formula is nationalist, in American terms.

The German Federation (Bund) and Länder were spherically sovereign in John Marshall’s sense, and all powers “not specifically granted” were residual in the Länder. Whether this has benefited the states in either country, is another question, since Federal courts have ways of finding additional powers for central authorities. As a division of labor, German Auftragsverwaltung (state administration of federal law) might cut either way. Conservative U.S. Supreme Court Justices denounce the very idea as wicked “commandeering,” although we had something like it under our own Confederation. The possibilities of creative foot-dragging on the part of the states, if we had the German arrangement, might be worth a look.[42]

Agrarianism and Confederalism as Punishment

The victorious Allies saw decentralization and agrarianism as ways to weaken or punish Germany. Such practices were apparently fit only for the backward. States rights reduced national power and therefore Germans ought to have to more of them than the mighty United States, but not so many as to make Germany useless as an ally. (It may well be that the official American analysis was wrong-footed and that decentralization and agrarianism have their merits. But that is a subject for another day.)

The waning Allied Control Commission went out of business in 1991 and Germany now seems fully sovereign under international law. But we shall not know for certain until a German government seriously opposes the wishes of the current (if failing) hegemon, on some day yet to come.

[1] Norbert Finzsch and Jürgen Martschukat, eds., Different Restorations – Reconstruction and “Wiederaufbau” in the United States and Germany: 1865—1945—1989 (Oxford: Bergahn Books, 1996).

[2] “Dieses Grundgesetz verliert seine Gültigkeit an dem Tage, an dem eine Verfassung in Kraft tritt, die von dem deutschen Volke in freier Entscheidung beschlossen worden ist.”

[3] James Bryce, etc., and Gagliardo.

[4] Heinz F. H. Eulau, “Theories of Federalism under the Holy Roman Empire,” APSR, 35 (August 1941), 643-664.

[5] John G. Gagliardo, “Cosmopolitanism and Federalism: Germany’s Neglected Tradition,” Continuity, 4/5 (1982), 71-92.

[6] Geoffrey Bruun, Europe and the French Imperium, 1799-1814 (1963 [1938), 137; 97, 121, 129-130. Koppel Pinson, 31.

[7] Essentially an Anglo-Russian effort. Golo Mann, 40. Spanish guerrillas could be mentioned.

[8] 39 members. Pinson, 53.

[9] Richard Hudson, “Formation of the North German Confederation,” PSQ, 6 (September 1891), 424. Cf. William M. Sloane, “Bismarck as a Maker of Empire,” PSQ, 15 (December 1900) 647-666.

[10] There were 22 states in this confederation. Koppel Pinson, 140.

[11]unscheinbaren” = ‘unpretentious, not flashy,’ etc.

[12] Gottfried Dietze, “The Federal Republic of Germany: An Evaluation after Ten Years,” Journal of Politics, 22 (February1960), 127n.

[13] For a humorous English view of German life, see Jerome Jerome, Three Men on the Bummel (1957 [1900]). It is humorous because it was pre-war.

[14] See Gordon Craig, Germany: 1866-1945 (New York: Oxford University Press, 1978), 39-43, 50; Koppel Pinson, Modern Germany (New York: Macmillan, 1966), 161-163.

[15] Leopold Kohr, The Breakdown of Nations (New York: E. P. Dutton, 1978 [1957]), 180.

[16] Most of the states were monarchies.

[17] John W. Burgess, “Tenure and Power of the German Emperor,” Political Science Quarterly, 3 (June 1888), 345-346.

[18] Ernst Freund, “The New German Constitution,” PSQ, 35 (June 1920), 177-203

[19] [Cf. federal occupations in the South in the late 1950s and early 1960s: at Little Rock, Ark., and Oxford, Miss.]

[20] Original decisionism creates the people who are then ‘protected’ by further decisionism (Dyzenhaus, 126). Cf. muddled performative ‘creation’ of a people in Arendt, Derrida, and Honig, with help from Strauss.

[21] David Dyzenhaus, “Legal Theory in the Collapse of Weimar,” APSR, 91 (March 1997), 121-134

[22] Theodore N. Kaufman, Germany Must Perish (Newark, NJ: Argyle Press, 1941), Paul Winkler, The Thousand-Year Conspiracy (New York: Scribner’s, 1943), and Richard M. Bricker, Is Germany Incurable? (New York: Lippincott, 1943). John T. Flynn noted these works in As We go Marching (1944), 75 notes. OTHER sources in James J. Martin; Humphrey Carpenter, The Inklings, on similar British notions.

[23] Gabriel Kolko, The Politics of War: The World and United States Foreign Policy, 1943-1945 (New York: Random House, 1970 [1968]), 323ff, where “de-Bolshevizing” Russia is seen as a motive.

[24] James L. Payne, “Did the United States Create Democracy in Germany?” Independent Review, 11 (2006), 209-221.

[25] Wilhelm Röpke, The Solution of the German Problem (1946).

[26] F. A. Hayek, Intro. to Wilhelm Röpke, The German Question (1946) [= US The Solution of the German Problem (1946)].

[27] Hayek, Intro., 13-14.

[28] Hans Kelsen, “The International Legal Status of Germany, to Be Established Immediately upon Termination of the War,” AJIL, 38 (October 1944), 689-694.

[29] F. B. Schick, “The Nuremberg Trial and the International Law of the Future,” AJIL, 41 (October 1947), 770-794.

[30] Pitman B. Potter, “Legal Bases and Character of Military Occupation in Germany and Japan,” AJIL, 43 (April 1949), 323-325.

[31] Kurt von Laun, “The Legal Status of Germany,” AJIL, 45 (April 1951), 267-285. Röpke’s plan would probably have run afoul of International Law too.

[32] Kolko… Melvyn Leffler… What’s-His-German…

[33] The Notstandsgesetzen (Emergency Laws of 1968) had to pass Allied approval. See below.

[34] Carl J. Friedrich, “Rebuilding the German Constitution, I,” APSR, 43 (June 1949), 461-482

[35] Their status as sub-peoples is not explained.

[36] Cf. the mad Hungarian constitution of the 1902s, etc.

[37] These are Rothbardian “command posts” that states expect to occupy.

[38] Carl J. Friedrich, “Rebuilding the German Constitution, II,” APSR, 43 (August 1949), 704-720

[39] Gottfried Dietze, “The Federal Republic of Germany: An Evaluation after Ten Years,” Journal of Politics, 22 (February1960), 112-147.

[40] Karl Jaspers, The Future of Germany (Chicago: University of Chicago Press, 1967) = Wohin Treibt die Bundesrepublik? (1966).

[41] ‘Am 27. Mai 1968 erklärten die drei Westmächte, bei einer Verabschiedung [‘passing on’] der Notstandsgesetze auf ihre Vorbehaltsrechte zu verzichten [‘waive’],’ [Wiki]. Proper source: Bekanntmachung der Erklärung der Drei Mächte vom 27. Mai 1968 zur Ablösung der alliierten Vorbehaltsrechte gemäß Artikel 5 Abs. 2 des Deutschlandvertrages (BGBl. I S. 714).

[42] It might be argued either way.

Joseph R. Stromberg

Joseph R. Stromberg is an independent historian born in southwest Florida and currently living in northeastern Georgia. He earned a B.A. and M.A. in History at Florida Atlantic University (1970, 1971) and did further graduate work in History at the University of Florida (1973-75). He was a Richard M. Weaver Fellow in 1970-1971. He has taught college level courses in World Civilizations, American History, and Florida History, as an adjunct instructor. His work has appeared in the Journal of Libertarian Studies, Telos, Chronicles, the Freeman, Future of Freedom, Independent Review, and the American Conservative. He has contributed essays to various collections including Secession, State, and Liberty (1998) and Opposing the Crusader State (2007). On the web he has appeared at Antiwar.com (over a hundred short essays in “The Old Cause” column, 1999-2003), First Principles Journal, Arator, and Anamnesis Journal. His research interests include the Old Right non-interventionists, the American South, peasantries in history, English Enclosures, constitutional issues, secession, and the origins of states and empires.

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