Office of the Historian

CFM Files: Lot M–88: Box 118: File—TRI Documents

Paper Agreed Upon by the London Conference on Germany1

secret

TRI/15 (Final)

Letter of Advice to Military Governors Regarding German Constitution

1.
The Governments of the three Occupying Powers recognise that there are several ways in which the decentralised Federal Government provided in TRI/13 (Final)2 can be obtained, and that it is impossible to determine if the Constitution satisfies the requirements of a decentralised Federal Organisation until it has been examined in its whole context.
However, the three Governments believe that a desirable governmental structure for Germany should, to the maximum extent possible, provide:
a.
For a bicameral legislative system in which one of the houses must represent the individual states and must have sufficient power to safeguard the interests of the states;
b.
That the executive must only have those powers which are definitely prescribed by the Constitution and that emergency powers, if any, of the executive must be so limited as to require prompt legislative or judicial review;
c.
That the powers of the Federal Government shall be limited to those expressly enumerated in the Constitution and in any case shall not include education, cultural and religious affairs, Local Government and Public Health (except, in this last case, to secure such coordination as is essential to safeguard the health of the people in the several States); that its powers in the field of public welfare be limited to those necessary for the co-ordination of social security measures; that its powers in the police field be limited to those approved during the period of the occupation by the occupying powers* and thereafter as defined by international agreement;
d.
That the powers of the Federal Government in the field of public finance shall be limited to the disposal of monies including the raising of revenues, for purposes for which it is responsible; that the Federal Government may set rates and legislate on the general principles of assessment with regard to other taxes for which uniformity is essential, the collection and utilisation of such taxes being left to the individual States; and that it may appropriate funds only for purposes for which it is responsible under the Constitution;
e.
That the Constitution should provide for an independent judiciary to review federal legislation, to review the exercise of federal executive power, to adjudicate conflicts between Federal and Land authorities as well as between Land authorities and to protect the civil rights and freedom of the individual.
f.
That the powers of the Federal Government to establish federal agencies for the execution and administration of its responsibilities should be clearly defined and should be limited to those fields in which it is clear that state implementation is impractical.
2.
The Military Governors are charged with the examination of the Constitution in terms of these guiding instructions bearing in mind that the purpose of such examination is to test the provisions of the Constitution as a whole to determine whether they guarantee a federal type of government.

London, 12 May, 1948.
  1. This paper was agreed upon at the informal meeting of the London Conference on Germany on May 11; see telegram 2072, Delsec 1732, May 12, from London, supra. It was Annex H to the Report of the London Conference on Germany, p. 309.↩
  2. Post, p. 305.↩

  3. The following understanding was reached on this subject:

    The Military Governors must decide in detail what powers the Federal Government should have as regards police.

    When the German Constituent Assembly presents its proposals for the Constitution, the Military Governors will disapprove the grant of any powers regarding police exceeding those which they have accepted by agreement among themselves as being necessary. [Footnote in the source text.]

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