The ‘formalities’ that are talked about here are not mere formalities, in a trial in front of the Staatsgerichtshof, but rather very real, political issues. The questions of who is the Land of Prussia, who represents the Land of Prussia, and where is Prussia today are real and highly political questions. This trial, therefore, arrived at what is truly its core problem in particular when dealing with questions of standing, with the competence to bring suit, and with active legitimation.* For this reason, it was not the result of an evil will or of something like that, but rather, so to speak, of the nature of the thing that the intensity and suddenness of disagreement repeatedly turned out to be strongest especially with regard to the question of the so-called formalities.

According to article 19* of the constitution of the Reich there is, among the three permissible kinds of trials in front of the Staatsgerichtshof that are mentioned there, only one in which the Reich appears; that is the trial of a Land against the Reich. A Land brings suit against the Reich, or the Reich brings suit against a Land – two ‘states’, as my colleague Mr Nawiasky said quite correctly. But it does not follow from this, that, as he went on to say, the Staatsgerichtshof is an ‘international court’. He even spoke of the so-called world court, a somewhat exaggerated designation for the well-known institution in The Hague. This permanent international court always puts special emphasis on a point that is recognized in its statute, and is made explicit in a series of judgments, namely that only states as such can appear in front of it. However, even [206] parliamentary parties of the Land legislatures appear here, arm in arm with the Land of Bavaria and the Land of Baden* (von Jan: How awful!). This alone makes for a great confusion and inconsistency.

The most important question of the trial, of course, concerns the Land of Prussia. The Land of Prussia did not disappear; it still exists; it is still there; it also has a government, a commissarial government, appointed by the president of the Reich, on the basis of his constitutional competence, which has the right to represent the Land of Prussia. If this is a constitutionally appointed state government, then the question of who has the right to represent Prussia is thereby answered. The view expressed by my colleague Mr Jacobi is precise and juristic, correct and indisputable: it is only on the basis of a fiction, a fiction that is conceivable and permissible only for reasons of procedural technique, that the ministers who have already been removed from their offices can nevertheless appear here; they appear on the basis of a fictitious right to represent that is ad hoc and for this case only. My colleague Mr Bilfinger objected to the fact – rightly so, in my opinion, and I also share the affect that propelled him – that the opposing side, in its briefs and in oral argument, constantly attempted to draw conclusions concerning the main question from this fiction and to say: if you concede that what we are doing here is to conduct a trial, then you also recognize that we have the right to represent the Land of Prussia; that, moreover, we still belong to the Reichsrat, and that, in general, we still have all manner of other competences. This alone was criticized by my colleague Mr Bilfinger. The real question, by contrast, is simply: was the commissarial government of the state appointed constitutionally by the president, on the basis of article 48 of the constitution of the Reich, or not? If it was, then any right to represent that was connected with the former offices of the deposed ministers thereby ceased to exist. We do not want to enter, here, into a deeper discussion of the question of what the former acting ministers can still be said to be, after they have been stripped of their right to act as ministers of the state. Neither do we want to discuss the even more difficult question by what title one is to address such a former acting minister from whom one has taken the right to act as a minister. The Reich emphasized from the beginning that the action it has taken is nothing but a temporary suspension of an acting state government. And in this context one always has to keep in mind: of an acting government of a highly peculiar kind, since this acting Prussian government owes its very existence to the notorious and devious trick* of a change of the Prussian parliament’s rules of procedure on 12 April. That makes the juristic construction of this highly peculiar entity, as which the Prussian state government that was removed from its office by the president of the Reich on 20 July 1932 presents itself now, even more difficult. But the question simply remains this: is it constitutionally permissible for the Reich to provide a Land with a commissarial state government? [207]

Accusations have been raised here against the government of the Reich, and there was talk of that government ‘hiding itself’, ‘shirking’, ‘taking cover’, and the like. I do not want to take this up, and I stick to the question: can a Land government of the form of the Prussian acting government, having been stripped of its office, appeal, against the constitutional powers of interference that lie with the Reich, to the autonomy of the Land of Prussia? This so-called Land government no longer is the Land of Prussia. The president of the Reich has certain opportunities for interference, by virtue of the constitution of the Reich, to which article 17, as an independent norm of competence,* is not opposed after a transfer of executive power has taken place – as has now also been expressly confirmed by Walter Jellinek.* The executive power of the Land also includes an organizational power, previously the king’s, now in the hands of the ministry of state. Now, if the appointment, on the part of the Reich, of a substitute organ, of a commissarial state government that runs the business of government, is permissible, by virtue of opportunities for interference that stem from the constitution of the Reich, then, assuming the constitutional requirements are otherwise met, this organ, and no one else, is the acting state government. It has the right to represent, and it is no argument at all, in this context, to invoke the autonomy of the Land, which, by the way, has never been put into question. If someone is ‘taking cover’ here, then it is the former acting government, now stripped of its office, that identifies itself with the Land of Prussia – with what inner justification I need not discuss here – and that now continuously brings up the autonomy of the Land of Prussia, the inalienable and intangible rights of the Land, and suchlike.

The following important point seems to me to have been overlooked in the discussions of the pertinent issues in the law of federalism: the president of the Reich, who has several different competences by virtue of article 48, can and must, if necessary, also exercise these competences in the interest of the autonomy of the Land. It is perfectly possible to think of a case where the autonomy of a Land cannot be rescued at all in any other way than this. One of the biggest and most serious dangers for our system of federalism, and for the autonomy of the Länder, after all, consists in the fact that tightly organized and centralized political parties that cross the boundaries of the several Länder may attempt to occupy a Land and to put its agents and servants into the government of a Land(Professor Heller: This is outrageous!) and thus come to endanger the autonomy of the Land. One might even argue that a very specific danger of continuous disturbances of function, of continuous endangerment of public security and order, and also of a failure on the part of a Land to perform its duties towards the Reich threatens from this side, the side of the parties. Now, if such a case occurs – I [208] am speaking altogether in the abstract – and if the president of the Reich sees himself forced to take action, then this is not at all in conflict with the autonomy of the Land. (Objection.) I believe my colleague Mr Nawiasky will concede to me that there are now parties that do signify a threat for the autonomy of a state. The Bavarian People’s Party, here, is in the altogether unique position that it signifies the very opposite of a threat to the autonomy of Bavaria. But there are also other parties. (von Jan: But we would be well able to deal with these parties ourselves!) That is your advantage over other parties, your peculiarity, and we want to hope that you do not come into a situation, one day, to thank God for the fact that there are opportunities under article 48 for the president of the Reich to interfere.

Hence, the only question is: can there be interference with the affairs of a state, from the side of the Reich, in the way that took place?

The contrast between a centralized and a federal state must not at all be connected with other contrasts by way of sloganeering. What seems to me to be decisive is this: if the president of the Reich has made use of his constitutional competence against a Land, if he has appointed such a commissarial Land government, and has suspended the other Land government, then the question of the right to represent has been answered, then one knows who is the active caretaker government of the Land. To invoke the autonomy of the Land as such, in this context, is a manifest confusion. Here in this trial, pictures and similes of an original kind have occasionally been used. I may perhaps be permitted myself, for a change, to become graphic, and to make the following statement, not with reference to this particular case, but in general, in order to clarify what seems to me to be the simple fact of the matter. If the fox has indeed been made the guardian of the henhouse, and if the question is how to get rid of it, then one may try to invoke all kinds of considerations, but surely not the autonomy and independence of the garden! That is the case of a Land government that has been suspended by the president of the Reich. It cannot invoke the autonomy of the Land as such. A commissarial government appointed by the Reich, of course, is not a normal government, but neither is an acting government a normal government, or even an acting government like the Prussian government that was deposed from its office, tainted as it is by the odium of 12 April.

Two slogans or key words I would still like to deal with quickly. In the first place, the phrase ‘guardian of the constitution’ was uttered here. To be more precise, my colleague Mr Nawiasky said, with special emphasis, and perhaps also with a polemical twist: the Staatsgerichtshof is the guardian of the constitution. No one disputes that; it is the guardian of the constitution. But it is and it remains a court of justice, and it is consequently dependent on [209] the peculiarities of legal and adjudicative form, as they have been explicated very penetratingly and, it seems to me, convincingly by my colleague Mr Jacobi. The Staatsgerichtshof only has the judicial and legal protection of the constitution. Since a constitution is a political entity, there is a need, in addition, for essentially political decisions, and in this respect it is, I believe, the president of the Reich who is the guardian of the constitution, and his competences under article 48, in particular, have the purpose, above all, of constituting a genuinely political guardian of the constitution, for the parts of the constitution that deal with federalism as well as for all others. If he appoints a commissarial Land government, in this capacity, then he likewise acts as guardian of the constitution, on the basis of the essentially political decision which is left to his political discretion, within certain boundaries that we pointed out here. But the decision which is at issue here remains his political decision. With this, the question that is important for article 19 of the constitution of the Reich, namely who is to represent the Land in such a case, is answered at the same time. The representation of the Land of Prussia that is exercised, on the basis of such an act of the president of the Reich, by the commissarial government, has its good and solid legal basis in the constitution of the Reich as well as in the constitution of the Land which it supplements.

The second slogan that frequently recurred here was that of the ‘honour and dignity’ of Prussia that is implied by Prussia’s statehood. I would like to say the following about this issue: Mr Ministerial Director Brecht thought it a good thing to remind us, in his closing summary this morning, that Mr President of the Reich, in the year 1866, took the field as a Prussian officer. What was going on in 1866? A federal execution of the German Bund against Prussia.* And Mr President of the Reich, as a Prussian officer, stood on the Prussian side and defended Prussia against this federal execution. If the same man who, back then, defended Prussia against an execution must now resolve to order a federal execution against the same Prussia, then this is a significant, astonishing event. One should become aware of this at least for a moment, since it shows that something has changed. The execution, now, does not have the goal of eliminating the Land and destroying its existence, but, to the contrary, protecting Prussia against dangers that threatened this state and this Land in particular. Given that there is so much talk here about the statehood, the dignity, and the honour of Prussia, then I must be permitted to put the question to myself, eventually – I do not put it to anyone else, but I do put it to myself, and in full view of the public: where is all that, the dignity and honour of Prussia, in better hands? With the acting ministers who have been removed from their offices on 20 July, and who continued to be acting ministers only due to the devious trick of 12 April (Objection: Situational jurisprudence!), [210] or with President of the Reich Hindenburg? This question is not difficult for me to answer. It is true, Prussia has its honour and its dignity, but the trustee and guardian of this honour, today, is the Reich.