Foreign Relations of the United States, 1948, Germany and Austria, Volume II

740.00119 Control (Germany)/11–2348

The Military Governors of the Western Zones of Occupation of Germany to the Parliamentary Council ¹

November 22, 1948

Aide-Mémoire

1. “As you are well aware, the Parliamentary Council was convened in order to draft a democratic constitution which will establish for the participating states a governmental structure of federal type, will protect the rights of the participating states, provide adequate central authority and contain guarantees of individual rights and freedoms. During the last eleven weeks the Parliamentary Council in plenary session as well as in its several committees has freely discussed those principles and drafted a basic law (provisional constitution) which is now before the main committee.

2. In view of the advanced stage now reached in the work of the Parliamentary Council, the Military Governors consider it advisable at this time to give the Council some indication of the interpretation which they will apply to the general principles set out in Document No. 1.² Since there are several ways in which democratic federal government can be obtained, they intend to consider the provisions of the basic law in their whole context. Nevertheless, they believe that the basic law 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 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 especially approved by the Military Governors, during the occupation period;

(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 revenue 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 the uniformity is essential. The collection and utilization of such taxes being left to the individual states, and that it may appropriate funds only for the purpose 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, and 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 impracticable;

(g) that each citizen has access to public office, with appointment and promotion being based solely on his fitness to discharge the responsibilities of the position, and that the Civil Service should be non-political in character;

(h) that a public servant if elected to the federal legislature, shall resign his office with the agency where he is employed before he accepts election.

3. The Military Governors will be guided by these principles in their final examination of the basic law (provisional constitution) and any subsequent amendments thereto, and they will consider the basic law (provisional constitution) as a whole in order to determine whether or not the broad requirements of Document 1 have been met.”

1. The source text was transmitted to the Department in airgram A–887, November 23, from Berlin, not printed. The aide-mémoire was left with Dr. Adenauer, the President of the Parliamentary Council, by the Liaison Officers of the Military Governors on November 22. The aide-mémoire was prepared and delivered by the Liaison Officers in accordance with the decision of the Military Governors at their meeting of November 16 (see telegram 266, November 17, from Frankfurt, p. 440).
2. The reference here is to the statement by General Clay at the meeting at Frankfurt on July 1 between the Military Governors and the Ministers President. See editorial note, p. 380.