II. “Tentative* Views on the Constitution”
[Memorandum of Bismarck (Putbus), November 19, 1866]
The composition of the Federal Council under the new German constitution will depend on whether the King of Prussia is to be granted the position of Head of the Reich or that of primus inter pares, first among equals in relation to the other members of the Confederation. In the former case, one could think of turning the King of Prussia into an independent factor in federal legislation, like the monarch of a constitutional state, and of giving the Federal Council (to be formed with minimal or no participation from Prussia) the status of an upper chamber within the state structure. Formally, establishing a monarchical federal state or German Kaiserreich will be more difficult than implementing the second system, which will follow traditional federal conceptions. Therefore, the latter will be accepted more easily by the participants, even if it secures the same dominant position for Prussia. This would already be virtually accomplished if we were to link the distribution of votes not to the smaller council but rather to the plenum of the Federal Diet [of 1815-1866]. In the latter instance, Prussia would have 17 votes (if the votes of the recently annexed states were added), while the rest of the states in the North German Confederation (provided that Darmstadt kept one of Upper Hesse’s original three plenary votes) would have a total of 26 votes, putting the entire number of votes at 43 and the absolute majority at 22. Thus, Prussia would attain this majority as soon as five of the smaller states voted with it. The danger that the Prussian government would, on any major issue, find itself in the minority in both the Reichstag and the Federal Council is not very likely owing to the numerical superiority of the Prussian deputies in the Reichstag; however, as an additional precaution, one also could stipulate that the consent of the federal commanders-in-chief and a two-thirds majority is required in all military matters and for changes to the constitution. According to the arrangement outlined above, these two thirds are not attainable without Prussia. In case the South Germans eventually join the confederation, this ratio would have to be maintained by increasing the number of Prussian votes to 20.
The advantages of this system consist in its dependence on traditional arrangements, which, being familiar and natural, will be more easily accepted by the governments than any new combination. The latter would have to bear an arbitrary character, just as arbitrary as the distribution of plenary votes originally was, unless one were to distribute the votes according to populations [represented] in the Federal Council as well. Such a distribution would leave the remaining governments completely silenced vis-à-vis Prussia.
If one formed a plenum of 43 votes in the manner outlined above, the governments could then nominate as many members of the assembly as they have votes, without the right to vote being made dependent on the presence of the corresponding number of delegates. Thus, Prussia would be able to nominate 17 delegates but would still be in a position to exercise 17 votes even if only one of the delegates were present. This would provide an opportunity to channel into the Federal Council (apart from the actual diplomatic representatives) the experts that it requires for each aspect of its legislative work. For example, in addition to our existing envoy to the current Federal Diet, who would act as President and perhaps be a member of our Prussian State Ministry, I am thinking of people in the league of Voigts-Rhetz, Jachmann, Delbrück, Dechend, Günther, Camphausen, a high-ranking post and telegraph official, a prominent member each of the aristocratic, industrial, and commercial circles, and others as Prussian members of the Federal Council, which would stand against the Reichstag as a ministerial bench with 43 members. By using existing institutions and the customary nomenclature, I believe that we could avoid the difficulties involved in setting against the Reichstag a ministry whose appointment might well involve competition from the German governments allied to us. Naturally, the Prussian delegates would always have to agree on how to vote, and they would jointly represent the views of the government. It would, however, still be possible for the minority of the Federal Council to plead its views publicly before the Reichstag, if it diverged from the official bills of the majority. Indeed, under certain circumstances, Prussia might need to do this. Ministerial solidarity, of course, cannot be binding upon the representatives of the various governments, each of which may recall its delegates at its own discretion.
* Unmaßgebliche: also in the sense of non-binding or preliminary – ed.