Looking at Germany

Constitutional patriotism as outlook?

by Karl-Jürgen Müller

Since 24 February 2022, at the latest, two basic lines of politics have become obvious in Germany. Their roots, however, go back much further. One line is the abandonment of a consensus of values, the basis of which was an enlightened Christian-humanist conception of man. Today, this line also includes the dismantling of the social and economic foundations of a social state promoting the general welfare. This denunciation is intended to give way to an ideologically dressed-up, but in fact self-destructive, complete submission to US requirements – and it is a breach of the constitution by the incumbents of state offices. The other line is the increasingly illiberal handling of fundamental criticism of this policy. The banner here is the accusation of “anti-constitutionality”, which has become a killer argument – this, too, is a breach of the constitution. Would it be not worthwhile to consider countering this pincer grip with a conciliatory constitutional patriotism that is aware of history and based on the citizen – a patriotism indispensably connected with the core of natural law – universal respect and the protection of human dignity?

A look at a few current figures shows that the social state promoting the general welfare is also endangered today. On 28 July, the Federal Statistical Office reported that the German gross domestic product (GDP) in the second quarter of 2023, adjusted for inflation, dropped by 0.6 per cent compared to the same quarter of the previous year. The loss of monetary value (inflation), according to the same office on 8 August, amounted to 6.5 per cent compared to June of the previous year. On 30 June, the Federal Employment Agency reported that the number of registered unemployed had increased by 19,000 people compared to June last year. On 2 August, Statista.com reported: 3.9 million of the people living in Germany – many more than the official unemployment figures – received the so-called "Bürgergeld" on average from January to July 2023, over 200,000 more than the average of the previous year. Until the end of 2022, this minimum state benefit was called unemployment benefit II (“Hartz IV”). On 14 August, the German debt clock reported a public debt of the federal, state and local governments of 2.55 trillion euros (that is more than 30,000 euro per capita), a record value that is still growing. At the end of 2022, it was 2.38 trillion euros. And on 11 August, the Federal Statistical Office reported 23.8 per cent more regular insolvencies (companies filing for bankruptcy) for July 2023 than in July of the previous year.
  These dry figures, it is easy to forget, are linked to many human fates.

“The sick man of Europe again”

Unlike the German Chancellor, who glossed over the country’s economic situation in the ZDF Summer Talk on 13 August, Moritz Küpper, President of the employers’ association Gesamtmetall – responsible for the metal and electrical industry, which is particularly important for the country – stated in an interview with Deutschlandfunk on 9 August: “It is a very, very difficult situation in Germany. We will slide into recession in the second half of the year. Germany is no longer competitive. We are indeed the sick man of Europe again.” He cited the poor framework conditions as the reason: “It’s the framework conditions. Framework conditions must be right for industry to be successful. Of course, this includes affordable energy prices. We are at the absolute top here with 20 cents per kilowatt hour. No country in the world has higher energy prices than Germany. We have endless bureaucracy. We have high taxes. We have high dues. We are behind in digitalisation. We have problems with education. Every year, 50,000 young people leave school without a diploma.”
  Since 24 February 2022, the German government has been blaming Russia and its president for these inadequate “framework conditions”. But this does not stand up to scrutiny. Michael Lüders, for example, in his book “Moral über alles? Warum sich Werte und nationale Interessen selten vertragen” (Morals above all? Why values and national interests seldom get along), published a few weeks ago, explained quite precisely why this justification is unconvincing and that the German government has unnecessarily plunged the country into a serious energy, economic and financial crisis and into a highly risky proxy war against Russia. All this serving the US interests and their claim to power, but ideologically charged in a special Green-German way and justified with a morality of double standards.

Who are the enemies
of the constitution?

On 10 August, German President Frank-Walter Steinmeier gave a lengthy speech commemorating the preparatory constitutional conference for the West German Basic Law (Grundgesetz) in Herrenchiemsee, which began 75 years ago. Almost at the end of the speech, he also made the “enemies of the constitution” a topic1: “Our Grundgesetz can tolerate hard and tough confrontation. But the constitution cannot integrate enemies of the constitution – and we must not ignore the danger they pose. [...] Clear, decisive, combative opposition by the democratic parties is, for example, always called for and required when agitators in public meetings [...] denigrate our democracy as a ‘system’, ‘unjust regime’ or ‘dictatorship’, discredit democratic institutions and make them look contemptible.”
  It is interesting to see whom the Federal President calls “enemies of the constitution”: People who, when looking at today’s political Germany, speak of a “system”, an “unjust regime” or even a “dictatorship”. Certainly, one can argue about the accuracy of this choice of words, but in terms of constitutional law, these formulations have nothing to do with “unconstitutionality” – only this term exists in the German Grundgesetz, the term “enemy of the constitution” does not appear at all. Decisive for the concept of unconstitutionality and possible consequences thereof are the provisions of the Grundgesetz on political parties (article 21). In its paragraphs 2 and 4, article 21 states: “Parties whose goals or the behaviour of their supporters are aimed at impairing or eliminating the liberal democratic basic order or at endangering the existence of the Federal Republic of Germany are unconstitutional. […] The Federal Constitutional Court shall decide on the question of unconstitutionality pursuant to paragraph 2 […].”

The liberal democratic basic order

In the history of the Federal Republic of Germany, the Federal Constitutional Court has ruled four times on the banning of a party and in doing so has also attempted to define the term “liberal democratic basic order”, which is not clarified in the constitution itself. The most compact was the 1952 judgement banning the Socialist Reich Party:

“Liberal democratic basic order in the sense of Art. 21 II GG (Constitution) is an order which, to the exclusion of any rule of force and arbitrariness, constitutes a rule of law based on the self-determination of the people according to the will of the respective majority and on freedom and equality. The fundamental principles of this order shall include at least: respect for the human rights concretised in the Basic Law, above all the right of the personality to life and free development, the sovereignty of the people, the separation of powers, the accountability of the government, the lawfulness of the administration, the independence of the courts, the multi-party principle and equal opportunities for all political parties with the right to form and exercise an opposition in accordance with the constitution.”

That sounds very different from what the German President classified as anti-constitutional on 10 August. And it is very likely that among those who speak of a “system”, an “unjust regime” or even a “dictatorship” with regard to today’s Germany, there are also people who justifiably ask themselves to what extent Germany’s office-holders in the past decades have not contributed significantly to the fact that for today’s Germany, with good arguments, there is no talk of “self-determination of the people”, of “sovereignty of the people”, of “separation of powers” and “independence of the courts”, of “equal opportunities for all political parties”, of “the right to form and exercise an opposition in accordance with the constitution”, of “respect for the human rights concretised in the Basic Law”. If, on the other hand, one follows the diction of the current Federal President, personalities such as Hannah Arendt and Karl Jaspers – for example, on the basis of their correspondence published in 1993 – would probably be “enemies of the constitution”.

Constitutional patriotism

Constitutionally based opposition to the real existing power politics in the Federal Republic of Germany has a notable tradition. Karl Jaspers already referred to the West German Constitution in his much-discussed 1966 paper “Wohin treibt die Bundesrepublik?” (Where is the Federal Republic heading?) The very first sentences of his preface show that he was not interested in criticism for criticism’s sake, but in improving the situation:

“A friend said that this book was one of the sharpest attacks on the Federal Republic by a German. I do not think this is correct. The existence of the Federal Republic is our good luck as a chance for a new German state. Criticism is levelled at paths the Federal Republic is taking today. Not negation is the intention, but a help, however tiny, through reflection. Therefore, in the third piece of this writing, a fundamentally different domestic and foreign policy is outlined compared to the present one.”

The philosopher Karl Jaspers was followed by teachers of constitutional law such as Martin Kriele or Karl Albrecht Schachtschneider with his fundamental work published in 1994, “Res publica res populi. Grundlegung einer Allgemeinen Rechtslehre. Ein Beitrag zur Freiheits-, Rechts- und Staatslehre” (Res publica res populi. Foundations of a General Theory of Law. A Contribution to the Doctrine of Liberty, Law and State).

Dolf Sternberger

“Constitutional patriotism” is a term coined by the German political scientist and journalist Dolf Sternberger.2 He was a contemporary of Karl Jaspers and Hannah Arendt and was in lively exchange with both. Sternberger lived from 1907 to 1989 and was a contemporary witness of the German catastrophes in the 20th century. During the Second World War he was banned from working as a journalist. After the war, from October 1945, together with Karl Jaspers, Alfred Weber and Werner Kraus, he published the journal “Die Wandlung”, a voice for the intellectual reconstruction of Germany. Sternberger turned against Machiavellianism in politics and appealed to Aristotle’s ethically based theory of the state. In clear dissociation from Carl Schmitt and his concept that the core of politics is the distinction between friend and foe, he postulated:

“The subject matter and aim of politics is peace. We have to, and wish to, seek to comprehend the political as the domain of endeavours to establish peace, to preserve peace, to guarantee, to protect and certainly also to defend peace. Or, to put it otherwise: peace is the political category per se. Or expressed yet differently: peace is the ground and characteristic, and the norm of the political, all this at once.”

In 2020, one of the most important political academies in Germany, the Academy for Political Education Tutzing, published a paper entitled “Verfassungspatriotismus – Zum 50. Geburtstag einer Wortschöpfung” (Constitutional patriotism – On the 50th birthday of a neologism)3. The following remarks are based on this publication. Immediately after the war, Sternberger was of the opinion that an emotional attachment of the Germans to their coming new state would be of great importance and that the rational reference of authorities and politicians to the constitution and laws alone would not be sufficient for social cohesion and living together. On the other hand, the years 1933-1945 had made it abundantly clear where a purely emotional attachment to a state entity and above all to the person of its “leader” (“Führer”), which eliminated reason, could lead. Sternberger therefore pleaded for a combination of emotionally fulfilled love of the fatherland and a democratic republic guided by reason. As early as 1947, he quoted in the journal Die Wandlung (The Transformation): “There is no fatherland in despotism.” And in 1959, under the title “Das Vaterland” (“The Fatherland”), he wrote: “The fatherland is the ‘republic,’ which we create for ourselves. The fatherland is the constitution, to which we give life.” Sternberger decisively rejected an ethnically based nationalism after the excesses under National Socialism; for him, Switzerland as a nation of the will was a model.
  He used the term “constitutional patriotism” for the first time in 1970 in an article for the “Frankfurter Allgemeine Zeitung”, but initially without a major echo. This only changed in 1979 with another article in the same newspaper and with his speech at the 25th anniversary of the Academy in Tutzing in 1982.
  Consent, Sternberger said in his speech at the time, which was summarised in the Academy’s publication, “cannot come to the state order simply on the basis of a historically grown community of fate and experience. Rather, only the common exercise of rights of freedom and participation can create a real sense of identity. A modern community like the Federal Republic of Germany is primarily held together by the rational will of its citizens to belong and to participate”. (emphasis km) For Sternberger, it was about the essence of the modern constitutional state; he too spoke of the “liberal democratic basic order” and its features that were central to him: “representative body and civic electorates, a controlled government, statutory administration, independent jurisdiction, open recruitment of leadership elites, change of office according to agreed rules of the game, public information and discussion, resistance and opposition, social pluralism and, finally, civic freedom secured by the state’s monopoly on the use of force”.

Constitutional patriotism today

In the Historikerstreit (Historians’ dispute) of the 1980s, the term “constitutional patriotism” came under fire. Jürgen Habermas used the term as a fighting tool against those who disagreed with the idea that German identity should only be regarded as a westernised Federal Republic identity and that German history before 1933 should only be regarded as a long road to National Socialism. Dolf Sternberger was not entirely innocent of this development. His resolute disassociation from National Socialism led him to view with great scepticism an overly emotional attachment of citizens to their state. In addition, he also strongly dissociated himself from German history before 1933 – although the history of the German freedom, constitutional and national movement certainly offered potential for identification. Also problematic from today’s perspective: Sternberger’s rather great trust in the federal German party oligarchy and the federal German state institutions.
  Critics such as the recently deceased writer Martin Walser or constitutional lawyers such as Rupert Scholz or Wolfgang Isensee referred to such points. Isensee spoke of an “abstraction” that was too “thin” and not suitable to explain “why a nation should stick together in good and bad days”.
  Indeed, a country whose citizens no longer see themselves as a “historically evolved community of destiny and experience” develops too little inner binding force. Seeing oneself as part of a “community of destiny and experience” does not mean absolving one’s own history and present. However: Would it not do all people living in Germany good to encounter the entire history and present of the country – including that of the former German Democratic Republic – without arrogance and know-it-all attitude?
  And to reconcile with the country’s tradition in West and East, which means: to understand and not to exclude oneself and to put one’s own responsibility for one’s own life and coexistence of all people in the country in the centre. And last but not least: to recognise and openly name all the things that are worth building on constructively. There is also a rich treasure for Germany.  •

1 On 31 July, Roger Köppel, chief editor of the Swiss Weltwoche, clarified how far the public extremism debate in Germany has removed from constitutional standards: https://weltwoche.ch/daily/parteitag-gereifte-afd-fordert-direkte-demokratie-eine-eu-der-vaterlaender-und-eine-migrationsfestung-europa-rechtsextremismus-wie-deutsche-behoerden-den-begriff-umdeuten-immer-mehr-deutsche-fuer/
2 cf. Sternberger, Dolf. Verfassungspatriotismus, Dolf Sternberger Schriften (Constitutional Patriotism, Dolf Sternberger Publications), Vol. X, Insel Verlag 1990
3 https://www.apb-tutzing.de/download/publikationen/kurzanalysen/Akademie-Kurzanalyse_2020_01_Web.pdf


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