Introduction to Max Weber’s article ‘The “Threatening” of the Reich Constitution’

This small newspaper article by Max Weber has gone unnoticed and untranslated. Ever since Wolfgang J. Mommsen’s Max Weber und die deutsche Politik (1959), the dominant interpretation of his politics has been to emphasize his support for a charismatic presidential leader who will put the interests of country over that of parliament and political parties. The Weber who expounded so much effort, most notably during and after the First World War, in calling for the strengthening of parliament and democratisation of political institutions as well as condemning the arbitrary power of the head of state (the monarch) is overlooked, certainly in the Anglo-Saxon reception. Therefore this article, which raises all three of the above points as early as 1904, is significant. Weber supports the intervention of his Heidelberg colleagues, Georg Jellinek and Gerhard Anschütz, but seeks to raise the level of political awareness in his readers by emphasising the importance of Parliament.

Max Weber wrote this article at the end of May 1904, and it was his first publication in the liberal Frankfurter Zeitung. Before then the newspaper had carried reports of his lectures and speeches. Its first reports covered his inaugural lecture in 1895 and his speeches on agrarian politics in 1896 (Weber, 1993: 722). This article may be seen as his first foray into constitutional issues, to the extent that his prior engagements were with Politik, that is with policy and politics as instanced by his participation in the Verein für Sozialpolitik. Looking forward, his major contributions on constitutional issues occur during the war years, though he made a significant contribution in 1906 with his analysis of the 1905 Russian revolution. Those two articles in the Archiv were entitled ‘The Situation of Bourgeois Democracy in Russia’ and ‘Russia’s Transition to Pseudo Democracy’ (Weber, 1995). ¹ In a deeper sense those two titles articulate his abiding concern with the situation in Germany, so the transition from Politik to Verfassung should not be exaggerated. Also, we should note that in writing the newspaper article he broke his own resolution, following his illness and breakdown, to withdraw from political engagement.

Nevertheless, the article can be considered something of an outlier, and it has been overlooked in the Weber literature. It was not included in the various editions of Gesammelte Politische Schriften edited by Johannes Winckelmann, and it was not included in the editions of Weber’s political writings, which Wolfgang Mommsen assembled, in the 1980s, for the Max Weber Gesamtausgabe. I came across it, somewhat by accident, in MWG I/8 which is a mixed collection of writings on economy, state and social policy edited by Wolfgang Schluchter (Weber, 1998). It was not included in the Peter Lassman and Ronald Speirs collection, Weber. Political Writings, and to my knowledge this is the first English translation.

The article was triggered by the publication in 1904 of Die deutsche Reichsverfassung. Vorträge (The Constitution of the German Empire. Lectures) by von Jagemann (1904). He had given a series of lectures at the university of Heidelberg the year before, having been made an ordentlicher honorary professor in the Faculty of Law. The award of honorary professor followed his withdrawal from his diplomatic position in Berlin. He was born in 1849, studied law at Heidelberg, and worked his way up in Baden’s legal and prosecution service. He was a Roman Catholic and represented the Grand Duke, Frederick I, at Pope Leo XIII’s priests’ jubilee in 1893. In the same year he was appointed as an envoy in Baden’s legation in Berlin, rising to become the plenipotentiary (Gesandter) of the Grand Duke in 1901. His academic reputation lies in the field of penal law, his official competence lay in the legal and constitutional rights of the federal princes and kings. According to his profile in the Badische Biographien (1982: 181–182) he had the ambition of entering the inner circle of the emperor William II. A previous Baden envoy Marschall von Bieberstein had risen to become the Reich Foreign Secretary in 1894, so as a career ambition there was a precedent. But Jagemann was rebuffed through the underhand machinations of the Chancellor Prince von Bülow who had him recalled to the Baden court, presumably in 1903.

The publication of the lectures unleashed a considerable public furore, not least by Heidelberg’s own constitutional lawyers. On 29 May 1904 Georg Jellinek and Gerhard Anschütz published an article in the Frankfurter Zeitung entitled ‘Herr von Jagemann and the Constitution of the German Empire’. Jagemann came back with a reply on 25 May in the same newspaper, and Weber’s own contribution was published on 3 June 1904 (Weber, 1998: 76).

Jagemann argued, as outlined in the scholarly apparatus of MWG I/8, that the German Empire was a federation – a Bund – of German states, something agreed to by treaty by the German kings, princes and free cities. This being the case it could be further dissolved by those parties agreeing to disagree, reaching a ‘mutuus dissensus’ as he phrased it. Jagemann saw this a contribution to constitutional theory. The Reich Constitution was not a publicly ratified document cemented into the law of the state, but an agreement of the 25 sovereign majesties and free cities that came together in March 1871 to sign what Jagemann – and others – regarded as a treaty and so, presumably, an alliance with a set of rules. As such, the signatories could agree to end the treaty. At that point the German Empire would simply fall apart, and with this, as he wrote, ‘also the Reich Constitution and its preconditions’ (quoted in Weber, 1998: 71).

Jellinek and Anschütz vigorously rebutted this thesis. ‘This doctrine (Lehre) has never been seriously put forward by any constitutional theorist. [. . .] Arguments similar to those put forward by Herr v. Jagemann were used in the period of constitutional conflict to justify a coup d’état (Staatsstreich): the monarch has unilaterally declared the constitution, so he can unilaterally declare it void’. They concluded, ‘In truth what we are opposing here are political theories not jurisitic ones’ (quoted in Weber, 1998: 74).

Weber buttressed the arguments of Jellinek and Anschütz, in his article, pouring scorn of Jagemann’s arguments and deriding his claim to have introduced an innovation in constitutional theory. That was just a front, behind which the suggestion and threat was clear: democratic institutions were allowed only on sufferance of the Emperor and the Bundesrat, which was the political forum of the federal states and their sovereign governments. Jagemann was giving explicit support to the centralising power of Berlin, against the whole tradition of Badenese independence before and within the Reich Constitution of 1871. Weber does not make this criticism, but Badenese sentiment to the extent it was particularistic must have regarded Jagemann as treacherous.

Weber makes clear in his article that he supported a constitutional monarchy, a position he only changed with the collapse of the Empire in November 1918, when he threw his weight behind a republican constitution (Weber, 2021: 23–59). What comes to the surface in Weber’s invective against Jagemann’s argument is the living nightmare that Berlin could at certain points have engineered a coup d’état. If the Bund had been disbanded, as legally feasible according to Jagemann, the German state would cease to exist and the Reichstag made redundant. This would have been done without reference to the electorate, and would have immediately sparked demonstrations, if not a revolution. Prussian soldiers would be ordered to suppress any disturbances with violence, the army shooting civilians.

This was a repeating pattern. When in the election of February 1890 the Reichstag moved decisively to left of centre and showed a huge electoral surge for the Social Democrats, Bismarck’s plan was to introduce a draconian Anti-Socialist Bill that he knew would be rejected by the Reichstag. At that point he would dissolve the Reichstag, several times if necessary, and then introduce a new electoral law. ‘He put forward the theory’, writes John Röhl, ‘that the German Reich was founded on an alliance of princes, not of states’. Bismarck said this in a sitting of the Prussian Ministry of State. The minutes, which were of course secret, record Bismarck saying ‘the princes . . . could decide if need be to withdraw from the joint treaty. [. . .] In this way it would be possible to free oneself from the Reichstag if the results of the election continued to be bad’ (Röhl, 2004: 288). This happened on a number of occasions: deliberately provocative bills were introduced for approval of the Reichstag with the implicit threat that if they were not passed he would not only dissolve the Reichstag – his usual procedure – but suppress democratic institutions, parties and the free press (Röhl, 1966: 618–619, 2014: 156–162).

Weber does not take Jagemann seriously, hence the derision. He recalls his father laughingly recounting such threats from Bismarck when Weber Sr. sat in the Reichstag (1872–77 and 1879–84) (Roth, 2001: 409–417). For Weber Sr. this was a bluff, a form of blackmail. As Weber himself comments, Parliament really did put up serious opposition in resisting Bismark’s military budgets ‘10 or 20 years ago, or indeed 40 years’. On those occasions the threat of Prussian autocracy was serious, but for Jagemann to bring up the same threat in 1904 was delusional – ‘bar-room’ talk (Bierbankpolitik) similar to what Weber heard in the 1890s as a legal assessor.

Did the political reality of over three decades of the Reichstag’s existence override such fears? The Reichstag had the legitimacy of universal equal manhood suffrage and it stood for the aspiration of a national unitary state. William II recognised this latter aspect, and he put considerable effort in promoting a national, unified Germany with him as its supreme leader (Clark, 2007: 589). ² The same held for trans-German national parties, like the Social Democrats and the National Liberals. But the Reichstag, as a working parliament, was greatly disadvantaged in its role in generating legislation and real oversight over the executive, whose power lay within the Federal Council (Bundesrat) and Prussia’s own institutions – its Landtag, Herrenhaus, the Prussian Council of State and attendant bureaucracy, and the Emperor’s court (Wehler, 1988: 60–78). Bismarck had contrived this arrangement in drawing up the Constitution of 1871. The structural weakness lay in the disconnect between the national democratic legislature (the Reichstag) and the autocratic executive. When Jagemann refers to the Reich Constitution as a form of treaty, he was highlighting a vulnerability in a structure that already had a major tension built into it.

Reading John Röhl’s extensive archival research, Jagemann may well have derived his juristic argument from the William II himself. During the period of the consolidation of the Emperor’s personal rule, the Emperor in 1897 had to deny the well-founded rumour that he and his circle of advisors were planning a coup d’état, with the aim of suppressing the Reichstag and democratic voting. He told or rather fobbed off, the Grand Duke of Baden (Friedrich I), whose own federal sovereignty would be undermined by any such coup, ‘I have only once spoken latterly to the Grand Duke of Baden about the electoral law in an academic sense, without any ulterior motive, purely by chance’ (Röhl, 2004: 859). The Grand Duke would almost certainly have passed on this secret information to his envoy in Berlin.

Weber bitterly observes of the present: ‘For almost 15 years we have lived under a regime which is marked by so strong a personal-monarchical character, as seldom was ever the case’. It was not just a case of re-cycling Bismarkian dicta, it was William II’s reflex action to any opposition to his autocratic ambitions, which during this period were increasing and unchecked. In his 1904 article we get a premonition of the dangers of William II’s ‘personal regime’, a courtly power centre within the polycracy of Berlin power centres (Röhl, 2004: xiv). In addition, large sections of the voting public were prepared to go along with the nationalist propaganda, which in William II’s hands promoted his leadership and denigrated Parliament. In the final paragraph of his article Weber points out that this is the real threat to the Constitution. He notes with some exasperation such parliamentary battles occurred in England 250 years before. In any open evaluation of Emperor versus Parliament it would be the latter that came out ahead. But there is also an implicit reproach to Parliament: that it was also being adjudged.

The premonition is that Parliament does not hold its own and that William II’s ‘personal regime’ would expand its power and go on to do great harm, both to the nation and its democratic institutions and the security of law. Extra-parliamentary rule opens the door to the political adventurer, he writes. A further question, of contemporary relevance, is: what are the conditions that allow doors to be opened to political adventurers? Weber had yet to come up with his famous definition of the state (in Economy and Society) as a compulsory political order that organises the legitimate monopoly of violence within a bounded territory, a definition which underlines the unitary nature of the state. ³ Neither Jagemann nor William II actually wanted to dissolve the Reich, but a federalism of princely states with a sense of their prerogative rights offered a prospect of destabilisation and an opportunity for a politician able to exploit local patriotism. Today’s European Union is a confederation of states linked together by treaty obligations. As such it has always afforded political mileage to national politicians defying what are presented as over-powerful central institutions, most conspicuously today in the case of the English populists Nigel Farage and Boris Johnson. ‘The “Threatening” of the Reich Constitution’ is a timely contribution to defence of democratic institutions, but is only a starting point in Weber’s own long preoccupation, which stretches to the design of the Weimar constitution, of stabilising federal rights within a unitary state.