Document Type

Article

Comments

Some Problems of Church and State in the Weimar Constitution, 72 Yale Law Journal 457 (1963)

Abstract

Because the United States was a comparatively new nation when its constitution was drafted, it could in many areas—among which church and state is one of the most important—embark upon a revolutionary political and social experiment without having to clear away the debris left by previous builders. The compromises crystalized in the Weimar constitution, on the other hand, represented but one stage in a lengthy process of interaction which had already molded both church and state. Consequently, although both the Weimar and the Philadelphia documents were products of a political revolution, any examination of the historical background of the 1919 provisions should serve not only to make the compromises they contained more explicable, but simultaneously to demonstrate why the two situations cannot be equated. The delicate structures which embody institutional compromises, unlike Scottish castles, rarely survive trans-Atlantic voyages.

In Germany, the institutional role of religion and churches was inextricably connected with the rise of the nation-state itself. During the Middle Ages, for example, because the territorial magnates who controlled vast tracts of land under the nominal authority of the Holy Roman Emperor in fact represented competing centers of secular authority, the Emperor was forced to turn to church officials for the performance of imperial administrative tasks. This tradition, deriving from the time of the Carolingian Renaissance in the ninth century, resulted in so close a relationship between church and state that Papal efforts to reform the German church in the eleventh century—aimed at the achievement of institutional independence—inevitably led to open conflict with the Emperors. The ensuing Papal victory was complete, the ruling Hohenstaufen line having been literally exterminated by 1268, and the resultant weakening of the central authority played a significant role in permitting centrifugal elements to prevent the unification of Germany until well into the nineteenth century. The heritage of open conflict between church and state, furthermore, was to play an important role in German history in the period immediately following unification.

Date of Authorship for this Version

1963

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