Can You Return a Gift From Your Founding Father? (It’s Been Done in Germany)
Yes, you can. And you should. After all, America is the country that lets you return a used toaster when the shade of brown it puts on your bread doesn’t match the color of your kitchen wallpaper — no questions asked. I don’t think the Founding Fathers would mind if we returned some of the things that made sense 250 years ago but no longer do. They’d of course be surprised and probably a little flattered to see that their Constitution is still up and running while countries in the Old World have had multiple system changes, revolts, and constitutional do-overs in the meantime. But then, after a second glance, they’d be scratching their wigged heads over our attempts to base 21st-century gun laws on an amendment that uses 18th-century grammar and a fuzzy syntax that has led to wildly different interpretations. I am sure they’d take the 2nd Amendment back and give us something brand new that’s a better fit. After all, they were bold innovators who resisted dogma, had a secular worldview and would shudder at the notion of calling a political document “sacred.” And besides, what’s the point of originalism if nobody wears wigs anymore?
The last time a group of framers went to work in my home country Germany was in 1948. They were more remodelers than founders — a democratic constitution had already been in place since the end of WWI, except it hadn’t worked. It had major flaws and loopholes wide enough for the entire Nazi party to march through and seize power legally. Interestingly and in contrast to their celebrated American counterparts, hardly anyone today remembers the Gründungsväter (founding fathers) of 1948. There is no shrine you can visit that displays a flashy piece of parchment, under glass and guarded by security, that starts with a German version of “We the People” and ends with an impressive list of signatures. It was their speed, not so much their names that made it into the history books. In just two weeks the group of legal experts put together a draft constitution with 149 articles while being secluded in a monastery on a Bavarian lake that was part of the American occupation zone. Chiemseeinsel Herrenwörth or short Herrenchiemsee provided a beautiful Alpine backdrop to the participants and a formidable pronunciation challenge to the US administrators. The Allies’ charge to the framers was simple. Come up with a tyrant-proof constitution and make sure there won’t be a Fourth Reich after the Third. It was done by taking back gifts that had been generously doled out during the previous round of democracy building. The Reichspräsident was stripped of the powers granted to him in the 1919 Weimar Constitution so that he could no longer act as “Ersatzkaiser” and overrule parliament by emergency decree or, for that matter, executive order. For Germany the real Hindenburg disaster wasn’t the Zeppelin exploding in 1937, it was President Hindenburg handing the chancellor position to Adolf Hitler four years earlier. The 1948 framers, many of them imprisoned, exiled or dismissed from office during the Nazi period, had seen their fellow Germans fall for strongmen’s promises and propaganda. Their solution? Take back the people’s right to directly vote for a leader (the German translation of which is “Führer”) and have parliament do it instead; parliamentarism instead of populism. So far, the system has worked and produced leaders that may be short on charisma but, luckily, on major personality disorders as well—with Olaf Scholz being the latest example. Parliamentarism, however, would be a hard sell in the US and probably not the solution in a presidential democracy.
Had the Herrenchiemsee framers taken more than two weeks to rummage through the dustbin of discarded constitutions they might have even stumbled upon the European “Electoral College,” a group of princes that had been selling their votes for the Emperor of the First German Reich from 1356 until Napoleon and his Grande Armée put an end to this charade. Napoleon never made it to the US, only his sales order for Louisiana did. Therefore, the American Electoral College is still alive and if European history is any predictor of its longevity, it’ll be with us until 2237. Has it prevented demagogues and wannabe dictators from snatching the President’s office as the Founding Fathers hoped it would? I bet that with their hopes so badly dashed in 2016, they’d take that gift back anytime, definitely before 2024 — no questions asked.
Henning Schroeder is a professor at the University of Minnesota and currently teaches in the Department of German, Nordic, Slavic & Dutch. His email address is firstname.lastname@example.org and his Twitter handle is @HenningSchroed1.
An earlier version of this article was published at https://thesocietypages.org