1 Throughout the following the word “democratic” is used in the prevailing Western sense which was adumbrated by the American government through its occupation authorities in an effort to differentiate itself clearly from the Soviet position, on July 9, 1946. It stressed, inter alia, frequent popular elections in which “not less than 2” parties compete, these parties to be “voluntary associations,” (2) guarantee of basic rights, (3) “rule of law.” See for this Friedrich, C. J. and Associates, American Experiences in Military Government in World War II (1948),Google Scholar Appendix C. Consideration is focused upon the constitutions of France, Italy and Germany, the latter term referring to Germany under Western occupation whose constitution (basic law) claims to represent all Germany from a democratic standpoint, just as the republic which has been erected in the Soviet Zone, claims to do so from a Communist (“people's democracy”) standpoint. It might have been well to include also the constitutions of the several German states (Laender); there are twelve of them and all but three have constitutions which resemble the Basic Law sufficiently to reinforce the analysis here given.

The constitutional situation in Austria deserves and requires separate analysis. Austria was permitted to re-activate the constitution of 1929, to annul at the same time all laws made after March 5, 1933, and especially the Fascist constitution of 1934—an inadequately noted and belated recognition that Fascism came to Austria at the same time it came to Germany, though in attenuated form.

2 In the following discussion, references to articles in the three constitutions are given by the Capitals F. G. and I. followed by the number of the article.

3 It has always been recognized in the United States that the existence of a federal system greatly contributed to the need for and the vitality of a judicial guardianship over the constitution. The absence of such a federal system in France, its emasculated form in Italy with its regions, and its presence in both Austria and Germany undoubtedly explains to some extent the difference in stress and emphasis upon judicial review.

4 The German Basic Law shoulders the constitutional court with the task of determining who has abused various basic rights “in order to attack the free, democratic basic order” and provides for the Court's pronouncing the extent to which any such attackers have forfeited these basic rights. While the intention of this provision (G. 18) is laudable, in so far as it seeks to prevent to some extent the reemergence dif Fascist-Communist attempts to twist constitutional freedoms into anti-constitutional tools, the article is a dangerous weapon. In the light of experience in older constitutional democracies, it is certainly well that this weapon be at least placed in judicial, rather than executive, hands.

5 We are concentrating in this discussion upon the Italian and German provisions, because the French relegated the statement of basic rights to the preamble. However, the earlier draft which was rejected by the voters on May 5, 1946, did contain such a bill of rights which to a considerable extent fits into the analysis above (not however, into the anti-coffimunist part of it.) Cf. Burdeau, Georges, Manuel de Droit Public—Les Libertés Publics, Les Droits Sociaux (1948).Google Scholar The authoritative Precis de Droit Constitutionel by Marcel Prélot, a member of the constitutional committee, entirely discards the preamble, and speaks of the rights having been “eliminated,” and in his view rightly so.

6 See my Constitutional Government and Democracy, Ch. XXIV (Forthcoming new edition).