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Bavaria's constitution turns 75: a declaration of love

2021-11-26T10:41:49.042Z


"Bavaria is a free state", the national colors are white and blue, children are "the most delicious good" of the people - this and other things are in the Bavarian constitution. The white and blue “Basic Law” is now 75. A declaration of love.


"Bavaria is a free state", the national colors are white and blue, children are "the most delicious good" of the people - this and other things are in the Bavarian constitution.

The white and blue “Basic Law” is now 75. A declaration of love.

Munich -

"Corporal punishment is forbidden in all schools" - this sentence was never in the Bavarian constitution. But in a draft that bears the signature of an SPD pioneer, perhaps the most important that the Bavarian social democracy ever had after the Second World War. Because anyone who wants to know how the Bavarian constitution came about cannot ignore the name Wilhelm Hoegner (1887 - 1980).

The member of the state parliament, who was to become Bavarian Prime Minister twice after 1945, only escaped to Tyrol by daring scrambling across the Karwendel mountains in 1933. While in exile in Switzerland, he dealt with the reconstruction of Bavaria, and since the early 1940s he was writing a “Constitution of the People's State of Bavaria” with like-minded people such as former Munich law professor Hans Nawiasky, who was hostile to the Nazis as a Jew .

From today's perspective, it is astonishing at what speed Bavaria's constitution took shape after 1945.

From March 1946 a preparatory constitutional committee discussed in the auditorium of the Munich university - nine participants, including the Munich mayor Karl Scharnagl (CSU) and his successor Thomas Wimmer (SPD).

The constitution was drafted in just three and a half months and 14 sessions.

Without the US occupation power, the constitution would not have come into existence

The important role of the Americans in this is little known. Without the US occupation power, the constitution would not have come into being, says the Munich lawyer and chairman of the constitutional association “Bavarian Unification”, Florian Besold. The Americans "as the occupying power pushed the rapid, even fastest possible democratic development". General Lucius D. Clay (1898-1978), a Southern officer and as deputy Eisenhower's key military in the American occupation zone, was farsighted and only intervened cautiously. At all costs, the Constitution should be avoided from appearing to be the work of the Americans. A first draft was available on September 20, 1946, and the constitution with 188 articles was ready on October 26, 1946. The next stages: December 1, 1946 referendum,Signed one day later by Wilhelm Hoegner, on December 8th, the constitution came into force quite unspectacularly with its publication in the Law and Ordinance Gazette.

There were few points of contention.

One was whether Bavaria should afford its own Bavarian state president - analogous to the German federal president.

Hoegner himself flirted with this office, says the historian Thomas Schlemmer.

On the other hand, from the conservative side, Crown Prince Rupprecht was brought into play - a King of Bavaria ante portas?

It didn't come to that.

In terms of its layout, Bavaria's constitution is very traditional: First comes the establishment of the state, then the basic rights with the demonstrative declaration: "Human dignity is inviolable".

In the German Basic Law it is the other way around - first the basic rights, which thus have an outstanding status, then everything else.

The constitution is made lovable through demonstrative confessions: “Bavaria is a free state” is one of these beliefs, “the state colors are white and blue” is a second.

The striking confession was no coincidence, because until the constitution was passed, the American occupying power had banned the hoisting of “white and blue” (to the annoyance of the Tölzer Leonhardi drivers, who had to do without the Bavarian flag on November 6, 1946).

We also learn from article 125 that children are "the most precious good of a people" (delicious in the sense of precious) and that schools should "not only impart knowledge and ability, but also build heart and character" (article 131).

Article 158 is often quoted, but difficult to implement: “Property obliges”.

Article 141 is poorly implemented

If you look at the villas on Lake Starnberg in this way, Article 141, Paragraph 3: "The state and municipalities are entitled and obliged to keep access to mountains, lakes, rivers and other scenic beauties free for the general public."

Article 74, on the other hand, is more effective than few other constitutional provisions, which enables referendums - citizens have so far (not always successfully) collected signatures 22 times.

And all of this is preceded by a wonderful preamble, which makes it clear to everyone that the constitution is a new beginning after the Nazi dictatorship: “In view of the rubble field”, the Bavarian people give themselves the following democratic constitution, “bearing in mind its more than thousand-year history”.

Anyone who reads the constitution may be amazed at one point or another: I didn't know that yet.

For example, that the Bavarian Prime Minister must be 40 years old.

Article 59 says that the state parliament is entitled to indict any prime minister, minister or state secretary before the Bavarian Constitutional Court if they violate the constitution - but that has never happened before.

Now only one thing is missing: a memorial to the constitution fathers Hoegner and Clay - perhaps next to each other.

That would be a nice birthday present for the constitution.

And maybe the original of the constitution of December 2, 1946 can still be found in some archive - it has disappeared.

also read

our “Münchner Merkur Magazin” on the Bavarian Constitution

+

Worth reading: the magazine for the constitution

© mm

Source: merkur

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