Peter L. Lindseth, The Paradox of Parliamentary Supremacy:
Delegation, Democracy, and Dictatorship
in Germany and France, 1920s-1950s, 113 YALE L.J. 1341 (2004).
(Abstract prepared by Yale Law Journal)
The struggle to define the role of the legislature in the
modern administrative state has been central to constitutional
politics in Western countries. That struggle was especially intense
in Germany and France from the 1920s to the 1950s. Contrary to
claims of certain interwar theorists, like Carl Schmitt, the
apparent demise of the legislature was not the consequence of an
"insurmountable" opposition between parliamentary democracy
and the demands of executive power in an era of administrative
governance.
Rather, for both Germany and France, the
constitutional flaw was traceable to a basic tenet of traditional
republicanism inherited from the nineteenth century. This view
held that a republican parliament, as the privileged institutional
expression of national sovereignty, necessarily possessed plenary
authority to allocate power among the branches as it alone
deemed expedient in the circumstances. In the interwar period,
the German and French parliaments repeatedly relied on this
notion to cede full powers to the executive, a practice that
ultimately provided the legal foundation for dictatorship.
After 1945, the drafters of the West German and French
postwar constitutions gleaned two lessons from the interwar
experience: first, that there had to be a substantive "reserve" of
governing authority that a republican parliament could not
delegate; and second, that an independent body had to have
power to enforce those delegation constraints against the
parliament itself. Although such constraints ran contrary to older
conceptions of parliamentary supremacy in a republican form of
government, the drafters concluded that they were necessary to
ensure the place of the parliament in a democratic system of
separation of powers.
The development of enforceable, yet
flexible, delegation constraints in postwar West Germany and
France thus marked an important constitutional innovation; it
was not a doctrinal relic from the eighteenth or nineteenth
centuries, as commentators often suppose when focusing solely on
the American case. Moreover, such constraints suggested a key
role for parliaments and courts in legitimizing executive and
administrative action-a function consolidated in law, however,
only after a period of significant historical struggle which
paradoxically required the weakening of elected legislatures
(through delegation constraints) in order to strengthen them.