Next week the German constitution will celebrate its 75th birthday. The Basic Law is a success story. But now extremists from the right and left are questioning democracy like never before. How stable is the Basic Law?
The glass walls rise several meters high not far from the Reichstag building. Most passers-by rush past, but some stop. You read: “Article 1. Human dignity is inviolable. Respecting and protecting it is the obligation of all state power.” It is these two principles on which the Federal Republic was built. These are the sentences that appear at the beginning of the Basic Law.
The first 19 articles name the fundamental rights: freedom of expression. Equality before the law. Freedom of assembly – to name just a few. In the original version from 1949, they are engraved into the glass walls – an installation by the Israeli sculptor Dani Karavan. On May 23, 2024, the Basic Law will be 75 years old. But how stable is the German constitution in times when populists on the right and left are slandering democracy with their slogans?
Enemies of the Constitution overthrow democracy: a distant scenario?
Experts see a danger. Already in 2019 described The constitutional lawyer Maximilian Steinbeis in the “Süddeutsche Zeitung” explains how quickly a populist – if he received an absolute majority in a federal election – could use the means of the constitution to undermine the Basic Law: within one legislative period.
“The problem is not that the system is not perfect, but that authoritarian populists like the AfD are aiming to abuse it systematically,” says Emma Bruhn, an employee of the Thuringia Project, in conversation with ntv.de. The Thuringia Project, led by Steinbeis, uses this federal state as an example to analyze what happens when authoritarian-populist parties gain state power. “No matter how well thought out the constitution is, it is not immune to this form of abuse,” says Bruhn. According to her, the idea of a watertight constitution is illusory. “A constitution does not simply have gaps that can be closed with additional legal norms. Rather, our constitution relies on voluntary consent and consensus in many places.”
Andreas Voßkuhle, President of the Federal Constitutional Court from 2010 to 2020, also warned most recently in the “Tagesspiegel” about AfD plans. The party aims “for a fundamental change in the system”. Voßkuhle sees this as a threat.
In contrast to Bruhn, Steinbeis and Voßkuhle, the historian Michael F. Feldkamp is less worried. He says that extremists could theoretically undermine the Basic Law and overturn democracy by exercising violence or mobilizing the masses. “But on the one hand, we have provided for the Bundeswehr in the Basic Law for such a case and, on the other hand, we also have the Federal Constitutional Court to collect controversial decisions in the Bundestag.”
Federal Constitutional Court: Most important guardian or Achilles heel?
But that could be exactly where the problem lies: Since 1951, the Federal Constitutional Court in Karlsruhe has been the most important guardian of the Basic Law. If citizens or state bodies feel that their fundamental rights have been violated, they turn to the Karlsruhe court. The Federal Constitutional Court protects the Basic Law. But who protects the Constitutional Court?
As early as 2019, Steinbeis saw the Constitutional Court as the most vulnerable point in democracy: If the AfD made up more than a third of the Bundestag members, it could gain influence on the selection of judges in Karlsruhe. The AfD could arrange any new appointments to judge positions or the length of the term of office to suit its own purposes.
“Poland has shown how a constitutional court can be brought into line with the government with just a few changes to procedural and organizational rules,” said Michael Elchberger, who was a judge at the First Senate of the Federal Constitutional Court until 2018, told the “Tagesspiegel”. “But only an independent and functioning court can guarantee effective protection.”
There have also been such attempts in Hungary, Turkey and Israel. In Israel, hundreds of thousands took to the streets against the judicial reform, also because legal scholars had been carrying out voluntary educational work among the civilian population for months, said constitutional lawyer Bruhn. “We want to create this awareness in Germany too.”
Protect the Federal Constitutional Court through new rules?
The traffic light government also wants to better protect the Federal Constitutional Court from influence: To this end, new rules should be enshrined in the Basic Law. So far, only a simple law regulates the court’s interests. That could be changed with a simple majority.
If the regulations were enshrined in the Basic Law, this wouldn’t be possible. This is part of the self-protection that the constitutional state has given itself: While simple laws can be changed with a simple majority, a change to the Basic Law must be approved by at least two thirds of the Bundestag and the Bundesrat.
Two articles of the Basic Law may not be changed at all: Articles 1 and 20 are inviolable. Human dignity must not be shaken. Article 20 states that the Federal Republic is a federal republic, a social and constitutional state. All state institutions in Germany are therefore bound by law and order. State arbitrariness should be excluded in this way.
A change in the Basic Law would currently require the votes of traffic light and Union factions. Discussions are taking place behind the scenes between the parties as to whether the Federal Constitutional Court should be protected by the Basic Law.
“The Basic Law today is no longer the same as it was in 1949”
Changes to the Basic Law are rare, but they do happen. In 75 years, MPs lent a hand 67 times. During the rearmament in the mid-1950s. Or in 1968, when the emergency laws were introduced. Since then, a resistance paragraph has been added to Article 20. Paragraph 4 states: “All Germans have the right to resist anyone who attempts to eliminate this order if no other remedy is possible.” In 1992 the right to asylum was restricted.
Two years earlier, in 1990, a particularly difficult constitutional question arose: How should the Federal Republic and the GDR come together? What we have since called reunification was technically just the GDR joining the scope of the Basic Law. The fathers and mothers of the Basic Law originally intended this option for Saarland, which has been part of the Federal Republic since 1957. The Basic Law actually had other plans for reunification: In that case, the Germans should create a new constitution. But that didn’t happen. The Basic Law had proven itself too well.
“The Basic Law today is no longer the same as it was in 1949,” says historian Feldkamp. “The Basic Law prescribes the rule of law. But such a constitution, like our entire legislative work, is a dynamic process. It is a dynamic constitution, which means it continues to develop.”
Learn from the mistakes of the Weimar Constitution
In 1948, the Parliamentary Council, which drafted the Basic Law, was supposed to correct the errors in the Weimar constitution that had enabled the National Socialists to legally take power and undermine democracy. “Hitler came to power through laws, more precisely the emergency decrees,” says Feldkamp ntv.de. The Parliamentary Council should therefore differentiate the balance of power more precisely and rule out a legal abolition of democracy. The new republic should no longer be able to fail.
After eight months of deliberations, the Parliamentary Council passed the Basic Law in Bonn on May 8, 1949. In view of the division of Germany, the name was intended to make clear the provisional nature of the constitution until reunification. On the night of May 23rd to 24th, 1949, the Basic Law came into force. The Federal Republic of Germany was thus founded as a liberal, democratic and social constitutional state.
Since then, political extremes and anti-constitutional parties have repeatedly been represented in the Bundestag. In 1949 there was a Nazi rallying point in the form of the Socialist Reich Party (SRP). The SRP was the first political party to be banned by the Federal Constitutional Court in 1952. The German Communist Party (KPD) was banned in 1956. It was the last ban on a party represented in the Bundestag to date.
The Party of Democratic Socialism (PDS), today’s Left Party, also entered the Bundestag in 1990 with the aim of abolishing the existing government system, says historian Feldkamp. Today the left has arrived in the democratic party spectrum. “We have always captured these parties and marginalized destructive politics,” says Feldkamp. “I trust our democratic and constitutional structures.”
Emma Bruhn from the Thuringia Project says that the Basic Law is best strengthened “by as many people as possible recognizing that we need this constitution – and are prepared to take to the streets to do so. People must not entrust the protection of democracy to the judiciary and outsource politics.” The constitution does not defend itself; politicians and society must actively work to ensure its defence. Paragraphs alone are not enough.