The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s

Abstract

For much of the first half of the twentieth century, the struggle to define the appropriate role of the legislature in the administrative state was a central feature of constitutional politics in both America and Europe. This struggle was especially intense, however, in Germany and France from the 1920s to the 1950s. In that difficult period, both countries experienced the effects of total war, the collapse of parliamentary democracy into dictatorship, and the struggle to rebuild parliamentarism in the context of the postwar welfare state. Contrary to claims of certain interwar theorists, like Carl Schmitt, developments in Germany and France were not symptomatic of an insurmountable opposition between parliamentary democracy and the demands of executive power in an era of administrative governance. Rather, the flaw in the constitutional practice of both countries can be traced to a basic tenet of traditional republicanism inherited from the nineteenth century. According to this view, a republican parliament was the privileged institutional expression of the sovereignty of the national political community. As a consequence, it necessarily possessed plenary authority to allocate normative power among the branches of government as it alone saw fit. Under the stress of economic and social crisis in the interwar period, however, this aspect of the republican tradition paradoxically left the parliament vulnerable to its own growing propensity to abandon its legislative function to the executive, a process that ultimately provided the legal foundation for executive dictatorship. After the Second World War, the drafters of the postwar constitutions in both West Germany and France recognized that, in order to preserve the democratic character of the state, there had to be a substantive reserve of normative authority that a republican parliament could not lawfully delegate. The drafters recognized, moreover, that an independent body was necessary to enforce these delegation constraints against the parliament itself. Although these constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters of the postwar West German and French constitutions concluded that they were essential to ensuring the place of the parliament in an evolving, but still democratic, system of separation of powers. This conclusion adds a measure of legal nuance to the prevailing historical interpretation of political-economic stabilization in Western Europe from the 1920s to the 1950s. To the extent that the conventional historiography has paid attention to public law at all, it has accepted the general conclusions of Charles Maier regarding the rise of corporatism in the twentieth-century welfare state and the relocation of the agencies of consensus and mediation away from parliaments into the bureaucratic realm. A closer look at the legal dimension of stabilization suggests that the more traditional constitutional structures inherited from the nineteenth century - not merely parliaments but also courts and court-like 'juridictions administratives' - continued to play a central role in legitimizing the normative output of corporatist bargaining in the executive and administrative spheres. This persistent mediating function was consolidated in law, however, only after a period of significant historical struggle, a process which required, paradoxically, the weakening of elected legislatures - through the imposition of delegation constraints - in order to strengthen them. By dispensing with the older notions of parliamentary supremacy that permitted unchecked delegation, the evolution of constitutional doctrine in West Germany and France after 1945 helped to reinforce the democratic character of the postwar administrative state in a historically recognizable sense. This Article is not intended to enter into debates over the continuing relevance of the nondelegation doctrine in American constitutional law. Nevertheless, this contribution will hopefully stimulate discussion over the broader comparative-historical significance of the doctrine in advanced welfare states in the twentieth century. In West German and French constitutional law, the emergence of delegation constraints after 1945 did not reflect the persistence of a doctrinal relic from the eighteenth or nineteenth centuries, as American commentators have often supposed when looking exclusively at the American case. Rather, the development of enforceable, yet flexible, delegation constraints marked an important constitutional innovation, one essential to the reconciliation of historical conceptions of parliamentary democracy with the reality of executive power in an age of administrative governance. The emergence of flexible delegation constraints after 1945 reflected a constitutional commitment to preserve - despite delegation - a mediating role for elected legislatures along with the conception of representative government that they embody.

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