The Rule of Experts

Chapter 6 discusses the drafting of state constitutions in US-occupied Germany. At the center of this chapter is the work of the Hessian and Bavarian constitutional conventions. The Hessian state constitution was especially important, as it was a model for the federal constitution of 1949. One of the main authors of the Hessian constitution was the jurist, Walter Jellinek. The state constitutions of Hesse and Bavaria provided the model for a militant democracy in practice. They allowed for judicial review of statutes, and a constitutional court to ban any organization espousing Nazi beliefs. Recent reémigrés and people released from Nazi concentration camps formed the majority of framers in the state of Hesse. This chapter argues that it was not the Cold War, but rather the inviolate memory of persecution during the Third Reich that shaped the structures of the state (and by extension federal) constitutions.