Constitutionalism as a force of popular loyalty: Constitutional and unconstitutional Württemberg in the early nineteenth century bodie alexander ashton Nationalism and the theories that govern it These national characteristics are, of are difficult to the point of being impenetra- course, comfortable (and, sometimes, un- ble. While nationhood is best defined quite comfortable) fictions, though their role simply as a «concept of unity», that concept in creating an identity consciousness (the — after Michael Hughes — is «something of community aspect of Anderson’s «im- a quagmire, deep and muddy, frequently agined communities») is indisputable. But not worth the struggle»1. In Benedict An- they are predicated upon a sort of eternity derson’s immortal phrasing, the nation is or longevity, of an identity stretching back little more than an «imagined communi- into history. On the other hand, the upsurge ty», defined less by geography and more in nationalist sentiment that was catalysed by the creative and sometimes inscrutable by and resulted from the Revolutionary means by which people feel as though they and Napoleonic Wars (1792-1815) occurred belong2. Often, these feelings take the form within a context in which such longstanding of the equally slippery idea of shared values. identity markers were impossible. With the This is a staple of modern political rhetoric; post-1815 central European map redrawn «make America great again», for example, beyond pre-1789 recognition, Restoration works as a concept only if there is a gener- governments in the German hinterland al consensus of what America is and what sought to harness burgeoning national made (and will make) it great. Additional- consciousnesses in order to supplement ly, the shift towards an anti-migrant «love and bolster state loyalties among their sub- it or leave» mentality regarding citizenship ject populations, even while the complex- in the Anglosphere and elsewhere implies ion of those populations remained in flux3. a certain immutability: a country or nation In many cases, they were singularly un- demonstrates characteristics that should successful. However, as this paper argues, not change for newcomers or critics. the southwestern Kingdom of Württem- giornale di storia costituzionale / journal of constitutional history 34 / II 2017 137 Itinerari berg was one of the few German states for of Tübingen, 8 July 1514), and the Ludwigs- whom the invention — or reinvention — of burger Verfassung (Ludwigsburg Constitu- the state identity was successful in captur- tion, 25 September 1819). Both documents ing the spirit of the population as a whole. were, for their times, extraordinary in word Particularly in the crucial years between as well as spirit, not only because they af- the collapse of Napoleon’s reign in Europe forded rights and liberties heretofore un- and the end of the revolutions of 1848-9, a paralleled upon the citizenry, but also be- succession of Württemberg state govern- cause they embodied a concrete check and ments, and indeed the crown itself, refash- balance upon royal prerogative. Both were ioned Württemberg identity, engendering initiated during crisis points in the state’s its subjects not with a patriotism based on history, and both were intended to provide the coincidence of territory (Territorialpa- stability in the context of regional uncer- triotismus), but rather a patriotism based on tainty. Furthermore, the earlier Treaty of a commonly-held idea that was portrayed Tübingen acted as a blueprint for the later, as unique to Württemberg, in this case its and far more modern, Ludwigsburg exam- constitutional history and heritage. It was ple. Yet they were fundamentally different this «constitutional patriotism» (Verfas- in both their intentions and their results. sungspatriotismus) that maintained a genu- Codified in 1514 as a power-sharing ar- ine popular faith in the institutions of state rangement between Duke Ulrich of Würt- and crown during the tumultuous years temberg and the landed estates (Landstän- between the end of the Napoleonic Wars de), the Tübinger Vertrag followed the English (1815) and the formation of the German Magna Carta by some three centuries. Even Empire (1871). It was also, conversely, the so, it stood largely alone in early modern liberties afforded by this constitutionalism Europe as an example of a treaty and agree- that permitted prominent Württembergers ment between the duke and the occupants of to become leading figures in the liberal-na- the land he governed. To each Württemberg tionalist unification movement that pres- citizen, it guaranteed certain fundamental aged the 1871 Reichsgründung and argued for rights and privileges, including freedom the foundation of a unitary German state. of movement and migration, rights to or- In the final analysis, a good Württemberger dinary justice, and the right to bear arms. could also be a good German — but to be a At the same time, it determined that the good constitutionalist was central to being a duke’s ability to harness the resources of good Württemberger. his state were curtailed by the requirement that these be coordinated in conjunction with the agreement of the estates. Thus, no tax could be imposed by the duke unless it 1. Introduction to Württemberg constitutional was agreed to by the assembled estate rep- history resentatives in the Stuttgart State Assembly (Landtag). In times of emergency and for The history of Württemberg constitutional- the purposes of the «salvation of the state», ism as a whole is actually the history of two the duke could call upon the citizenry for constitutions — the Tübinger Vertrag (Treaty military service, but only «with the advice, 138 Ashton knowledge and will of the general estates» teed by the Treaty of Tübingen, would place (mit rat, wissen und willen gemainer land- an unreasonable financial burden on the schaft)4. What this meant in practice was estates, and was nothing less than a mock- not adequately expressed; as James Allen ery of «all legitimate Christian, German, Vann notes, much of it was formulated in non-Machiavellian polity»7. On much the order to address specific issues relevant to same issue, one of Sturm’s successors, Jo- the context of 1514 and, in other cases, the hann Dietrich Hörner, argued in 1724 that document was frustratingly vague5. Never- a standing army would require the hiring theless, the spirit of the contract was one of foreign mercenaries, who would be able of balance. The Landtag of 1584, at which to influence state politics and, potentially, the question of balancing state budgets was undermine the authority constitutionally a key issue, provides an example of this. guaranteed the estates8. At the conclusion of this assembly, Duke It is true that the constitution was an Ludwig III thanked the estate represent- asymmetric application of power distribu- atives for their «willing readiness» to ac- tion. That is to say, while the constitution cept and elevate him as the «rightful father conferred rights upon the ordinary citi- of the land» (rechter Landesvater), but also zenry, it did not concentrate power in those insisted that they were bound by the laws of citizens’ hands. That was left to the mem- the state and would be encouraged to limit bers of the so-called Ehrbarkeit (worthies). their expenses. «The estates accepted this This was a socioeconomic group consist- address “thankfully and with joy”», we are ing of select, close-knit, and intertwined told, «but they reminded the duke at the families, from which representatives were same time that it would not be enough for selected for the Württemberg Landtag. them to have appropriated the debts [of the Theoretically, Württemberg historically state], he himself would also have to right- lacked enduring traditions of primogeni- fully save»6. ture, which in turn precluded the develop- Financial issues were often at the fore- ment of the noble houses found elsewhere. front of estate concerns, and were a fre- In practice, the Ehrbarkeit dominated the quent source of tension between the ducal estates and therefore the political process house and the Landtag. In 1692, for in- entrusted to the estates. Its monopoly of stance, Friedrich Karl, Duke of Württem- power had the added effect of closing the berg-Winnental and regent of Württemberg Ehrbarkeit to outside influences; as Peter H. since 1677, attempted to raise a standing Wilson notes, by the 1680s «it was almost army by activating the emergency military impossible for any individual to join them duty clause in the Treaty. In spite of the fact either from the lower social orders within that Württemberg was, indeed, in the midst the duchy, or from other groups outside of a regional emergency, he was repudiated it»9. by the estates. The legal advisor to the Land- The implication with regards the actu- tag, Dr. Johann Heinrich Sturm, argued al implementation of the Treaty of Tübin- forcefully that the raising of a permanent gen was twofold. Firstly, it conditioned the Württemberg army was a gross violation of Württemberg political process towards an the traditional liberties and rights guaran- inherent institutional defence of vested es- 139 Itinerari tate interests. This occasionally brought the ry11. In spite of the efforts of some of the estates into conflict with the duke, as in the Württemberg dukes who, in the mould of example of Friedrich Karl’s appeal to ex- Friedrich Karl, attempted to exert a great- pand the standing army. The Landtag’s ret- er monarchical influence over the state icence may have forsaken prudent security than the constitution allowed, the Trea- in favour of vested financial interests. But ty of Tübingen remained in force (though this does not entirely do justice to Dr. Sturm its boundaries were periodically tested). and his contemporaries, who had reason to However, the process by which Württem- hold the regent under suspicion. The Ehr- berg’s constitutional history and identity barkeit represented itself as the defender of were transformed began in 1797, upon the constitutionalism, and in some respects it death of Duke Friedrich II Eugen.