Karl Friedrich Vollgraff (1794-1863) was — surprise, surprise — a bleeding jurist. Actually a fanatic for detail even by the standards of his profession. “Die teutschen Standesherren” is one of the densest and most impenetrable lawbooks on German nobiliary law that I’ve encountered. In any event, his heart and mind were in the right place, and he ranks high up in the intellectual pantheon of the German counterrevolutionaries. There is one particular work of his, entitled Die Täuschungen des Repräsentativsystems [The Illusions of the Representative System] (1832) that merits special attention. A succinct work at under 100 pages, it is an absolutely devastating refutation of political liberalism and representative government from a traditional Germanic landständisch and aristocratic perspective, very capably juxtaposing the forgotten traditional and the hegemonic revolutionary conceptions. In any investigation of just what was estate-based representation and just what was this “old regime” that liberalism overthrew to begin with, it is a good introduction via negative comparison.

In his telling, prior to 1789 Germany knew only the class system and its constitutions, and nothing of modern representative government. Vollgraff sets up a four-stage anthropological taxonomy of political development that he uses for illustrative purposes throughout. These stages are temperamental peoples (savages), free peoples (shepherds, hunters, conquering nomads), right-peoples (right as in “recht” — sedentary agriculturists) and state-peoples (Indo-Aryans, Egyptians, Greeks). In this schema no nation ever abandons or is able to abandon the gradual class commanded by its nature and enter a higher one. Germans, Celts and Slavs are all firmly in the third stage as “right-peoples.”

A mass of people which, in fact or by virtue of private law, is divided into structured castes or estates and differs in life, corresponds only and solely to a representation in the form of an estate [Stand], divided into distinct representative blocs based on political class that vote as a collective interest, i.e. curiae.

In the German case, Vollgraff writes that in their private life through their hierarchical superiors, family leaders (seniors and primogeniti) and municipal authorities the Germans were afforded a representative constitution of a territorial nature. Just like in the curia of the provincial diets, the right to sit on one of these assemblies was a personal, life-long one inherited as an intergenerational trust and belonging to the persons who were the legal superiors, defenders and protectors of their peers and subordinates; their subordinates did not choose them on an ad-hoc basis for their representatives, but they were already very much in their own right and by virtue of their duty. Only the freest wealthy peasantry chose its deputies, but in most cases only its village authorities. Even the unfree peasantry found in its landlords (clergy and knighthood) its natural defender.

Furthermore, before the modern Westphalian state and in feudal conditions, the territorial possessions of princes were often non-contiguous and hence there could be no such thing as a National Assembly:

Just as in private life the possessions of a prince very often formed nothing at all like a homogenous coherent whole, but rather were scattered as isolated units or only existed alongside each other, as they had been successively acquired diversis ex titulis and rebus sic stantibus, so this diversity was also corroborated by the fact that every self-contained acquisition, theoretically called provincial, also had its own conventional particular-state assemblies. If there were also general or communal landtagen, especially in multilevel, originally homogeneous territories (eg Anhalt, Mecklenburg, Reuss, Hanover since 1820, etc.), this was due to the particularism and the special interests of the provincial estates and individual territories. Negotiations were only conducted on these communal provincial agendas, and indeed communal matters.

There are two pertinent phenomena in the older representative constitutions: first, the estate diets were extraordinary in nature and not permanently standing bodies, convened in cases where the prince required a levy of taxes and/or troops. However, the impermanent nature of the estates and the purely royal prerogative in convening them was offset by a customary right for the estates to appoint permanent commissions in between diets particularly when a great volume of resources was being given.

As a royal prerogative, the prince alone quartered the diet. But further still all legislation emanated from his own self-sufficient right, i.e. “he alone, partly in part as the sole owner of sovereignty, was entitled to the initiative, i.e. the submission of new treaties to be concluded with the estates, now called laws, but he was free to present them at will, and if he did so, and often did so, because the estates attached to their execution the approval of the requisite subsides, the submission to him, however, was largely due to him in the form of an ordinance emanating from him alone, without being prompted by the Estates in the least to reciprocate.”

“In matters which did not directly affect the tax exemption and other well-acquired rights and freedoms of the individual estates, but more or less depended on the mera facultas of the owner of the sovereignty and land sovereignty, stood the estates which were never the owners of the latter, nor in terms of a consent of the governed, but merely a possible right of consultation, insofar as they were presented to them for their own consideration.”

However, the infrequent convening of these assemblies did not in any way signify an arbitrary government or a form of tyranny. The reason for this is that the range of affairs requiring cooperation between a prince and the estates was quite narrow, and more often than not they had separate and non-overlapping spheres of right and duties. Vollgraff enumerates a great deal of these, among others these are:

1. Guardianship matters of the princely house do not concern the Staende, because they are a house matter or something of a private royal prerogative.

2. Land divisions and divestments did not (for these were done again either under feudal law or private inheritance laws), but in the case of simple divisions among brethren or nomads, the estates would here and there preserve, by means of old assurances, the community of estates assemblies.

3. Unless special treaties or custom were granted, the Estates could not claim an annual bill of exchange for the proceeds of the royal demesne and feudal possessions, since they were considered to be household goods and income, which they historically had no right to.

4. As long as one did not desire subsidies or contributions (for example, to the costs of war and legislation), the external conditions were quite outside the range of the demand of the Estates, because they were only domestic and court affairs.

5. Absence of a unified treasury: according to old statute rights, there was almost no total national debt, but every part (prince and estates) and every province had its own.

6. No uniformity of private rights and duties, but great diversity and no authority neither on the part of the princes nor the estates, by general civil-law books to forcibly introduce such uniformity of rights.

7. No military conscription.

Vollgraff quotes another author to the extent that though the subjects of a sovereign are in certain, precisely determined dependencies and obligations to him, they are also incidentally independent and also have, like himself, their own manifold interests, which, as far as they are purely individual for themselves, may through association become communal interests.

That there were elective elements in the feudal system is clear, but these did not imply any representative constitution, since the elective elements were of a class-based and military character: “The feudal system, however, knows nothing of a people’s sovereignty, but conversely the supreme feudal lord is the source of all, at first, however, barely noticeable governmental powers; all vassalite sub-governmental rights derive from him, even though he himself has already sunk to the shadow lord by the greed and defiance of his vassals. It was not the Franks who chose Pipin on the Franconian throne, but the great vassals and high clerics; not the people chose Hugh Capet as king, but the great vassals and high clerics; they did not explain it, or in turn made the French kings hereditary, but their gradual striving and the growing power of the Capetians; not the Teutonic people chose Arnulf on the German throne, but the great vassals, etc.”

Nor can the elective elements of the Germanic tribes described by Tacitus be considered as anticipating a representative constitutions, since these were half-hunter nomad peoples for whom any form of government is a peculiarity.

The only effective equality here is that every pre-existing established right is entitled to equal protection.

Now, comparing this to a modern constitution, modern democratic representation presupposes that from the above few aggregates of protected but differently entitled subjects a homogeneous population of the same population, no longer divided into classes, classes, assets and occupations, is called a people. How will this happen? The snarky answer: “It could be formed by magic, or by a spring-stroke, or, at least, that only such people’s elections would be needed to turn such a colorful unequal population backwards into such a private and legal unity and equality.”

The absurdity of democratic representation becomes more evident when the quantitative over qualitative aspect of it is taken into account:

No longer do they appear from the various estates, as well-born or self-entitled superiors, defenders, and protectors of their comrades and subordinates, and not even of these last elected deputies, but the mere number of souls determines the number of representatives of the people (including beggars, servants, wives, children, etc.), regardless of the fact that this number of souls is even a mathematical absurdity, since these cannot be added together — and these, by a mere arbitrary death and division of different proportions of the populace determine the number and proportion of representatives, and consistently, not the representatives of their concrete voters, their electoral districts, but rather each one is representative of the whole people, of the whole country. They may therefore no longer accept powers or instructions (for this would tear the artificial unity of the people’s will)… The elected may not have seen his voters in their residences in his whole life, knows nothing of their concrete need and their needs, but neither does he need to either, since he does not represent them, but the fake “whole people,” even this fake creature likes to have a finite, identical interest.

Vollgraff has no love for indirect representation, electoral colleges and other such measures that have frequently been applied to avoid pure majoritarianism. They only confound the issue: “In these people’s elections, however, yet another deception comes to light, and indeed that of its mediacy, for this is almost identical to a lottery drawing or election by lot in relation to the original voters. The larger a country is, and the smaller the proportion of actual representatives must be determined, if the assembly of them is not to become an unformed corpus, the more urgent becomes the imperative of indirect elections… That in such mediate elections the individual interests of the various classes, as they are still present and can not be forcibly denied away, can be thought away completely, completely ignored, so that the original voters are often not the ones actually represented at all.”

Majorities are always tenuous and shifting, with different percentages of the country at war with the others:

Neither the fictitious people nor the individual classes are, therefore really represented in a Chamber of Representatives so chosen, but this is only an aggregate coined by chance, and it follows that which pleases the individuality of the majority of the individuals. Hence in one session a royalist, in the next a democrat, and in the third a ministerial middle class, while in the country itself all these pros and cons, all these nuances, are foreign, but nevertheless they have to put up with it. What this lot decides optimally about, from whence it comes, that one and the same mass rule of such representative assemblies is applauded by one district and cursed by the other, and only in the most fortunate case are all classes satisfied, happy that a lottery ticket has won by accident.

Unitary government and administrative unification breeds discontent: “Provincial estates, however, were and are, according to the system of classes, just as naturally a necessary mirror image of the province in subjective relation, as general estates are a reflex of the whole country. If one takes them from the provinces, one takes, as it were, the capstone out of the vaults of their provincialism; one loses his political hold and base. Therefore, even after wars and land assignments, nothing is more painful for the inhabitants than when, for centuries, closely linked countries or provinces are cut into pieces and passed on to various, completely foreign, new masters.”

“The old estates meetings convened according to need their permanent deputations, like the representative assemblies, did not resemble a lottery, but a prudent trading business, a well-informed agency, and so did not excite, like a lottery drawing, the tension, anxiety, and curiosity of the whole country,” he continues.

Vollgraff also laughs at the entire fiction of a “government shutdown”: “By the way, nothing is more ridiculous and inconsequential than when people’s representatives are threatening to refuse taxes altogether, since the budget of the state is principally their business, and the government is still in charge.” How can the representatives refuse to give something that doesn’t belong to them?

Representative assemblies are not convened by a higher authority, they convene themselves in their own right: “According to the representative system, the representative assembly is, by virtue of the popular sovereignty which underlies it her own head, her own beginning and her own end, that is, she is elected at the appointed time without the electoral command of the government, she gathers at the appointed time without calling a convocation, she constitutes herself, examines her own elections, selects her president, who handles the sessions herself, throws out representatives who do not approve of her, is invulnerable and irresponsible because of her insults and rudeness…”

The necessary inversions follow: all regal and feudal possessions are state property, representatives control the sovereign’s political appointments, a unification of all treasuries into one state budget and hence a general national budget that sets the scene for more bitter distributional struggles, “the previously protected subjects of a prince are now citizens and may freely emigrate freely, which they do with great haste,” violent uniformity of private rights by positive civil law books, conscription, extensive jus eminens or legal infringement authority of private property, as soon as only the representatives find it necessary, a centralization system by means of sharply demarcated departmental ministries, so that the provinces, cities and municipalities are and will be deprived of all and any self-management of their local affairs, completely equal and geographical division of countries without regard to their former historical provincial aggregation, etc. etc.

Nonetheless, all these conditions reflect the private life of modern European peoples. Specifically, Vollgraff points to the destruction of fee tails, fideicommissum, primogeniture and other hard property in favor of liquid monetary wealth, in addition to the expropriation of the clergy and their reduction into mere citizens like anyone else, as well as the personal freedom of the peasantry integrating them into the bourgeoisie, with their houses and furniture often exceeding the value of their actual land plots.

In the future, the least one could do is exclude all non-proprietors from representation, since after all one who submits to a city as a tenant has no right to co-own in the governance of the city itself as a lord or burgomaster:

Anyone who settles down as a guest in a city as a member, assessor, tenant, etc. submits to the laws of the city and has no right to co-own them. In general, all non-proprietors and all foreign-born must be absolutely excluded from the elections. If the latter buy in the country, then first of all the children raised there may be regarded as native, for only the innate sympathy and attachment to the real first home makes them patriotic. One does not change the homely feelings arbitrarily like a shirt. Scholarship, the Christian religion, science, and speculation then have no fatherland, no home, and it is absurd to be represented at such at a diet where only material local interests are to be represented.

“Scholarship, the Christian religion, science, and speculation then have no fatherland” — what a truth. Alas, who in this deracinated soil can represent material local interests? Do they still exist? I do not know.