75 years later: German politics has moved far away from the Basic Law

This May, the German Basic Law and the Federal Republic of Germany will be 75 years old. With its core points, the wording of the Basic Law could establish something like “constitutional patriotism”¹ (Dolf Sternberger). These core points include the obligation of all state authority not only to respect human dignity, which has been declared inviolable, but also to protect it (article 1); the commitment to the “inviolable and inalienable human rights”, formulated as fundamental rights, and to the inalienability of these fundamental rights in their essential content (article 2 – article 19); the commitment to democracy, the federal state, the constitutional state, the welfare state and the separation of powers (article 20).
  The principle of peace is also central. This imperative is the consequence of the dictatorship suffered and the murderous Second World War. As a rule, turning away from peace policy also means disenfranchising the citizens of one’s own country. This constitutional obligation for peace is confirmed by today’s preamble to the Basic Law (“to serve the peace of the world”), the obligation of all inhabitants of the country to observe the “general rules of international law” (article 25) and article 26, paragraph 1 with its wording: “Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be criminalised.”

The letter of the
constitution is no guarantee

However, the mothers and fathers of the Basic Law were also aware that the letter of the constitution alone is no guarantee for a corresponding constitutional reality. This had been demonstrated by the experience of German history since 1930 – years in which the democratic, constitutional, and liberal substance of the Weimar Constitution had been increasingly eroded by politics and then completely destroyed in rapid steps after 30 January 1933.
  The authors of the constitution were looking for remedies. One was the concept of a “fortified democracy”, for example in the form of the possibility of having political parties banned by the Federal Constitutional Court if “by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany” (article 21, paragraph 2). Another was the so-called eternity clause in article 79, paragraph 3: the inadmissibility of the principles in articles 1 and 20.
  In the 1960s, during the debate on the emergency laws planned by the government at the time, the question if the constitutional order could also be jeopardised by the state and its officials themselves was once again the subject of heated discussion. As a result, the Basic Law was amended in 1968 to include the right of resistance in paragraph 4 of article 20: “All Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available.”

The importance of ethics and morality

What is often overlooked, however, is what the former judge at the German Federal Constitutional Court and professor of constitutional law Ernst-Wolfgang Böckenförde first formulated in 1964: “The liberal, secularised state lives on preconditions that it cannot guarantee itself.” Böckenförde meant that the modern, secular constitutional state cannot create and certainly not enforce the indispensable prerequisite for its establishment and existence, namely a corresponding fundamental ethical, moral attitude of its citizens – including its politicians – but rather presupposes it and must leave it to other institutions. Families, upbringing and education, schools, cultural substance and the passing on of this substance are what is needed here.

Where does Germany stand today?

In recent years, Germany’s real politics have moved far away from the constitutional order formulated in the Basic Law – and also very actively away from the fact that other institutions can secure the necessary ethical and moral conditions for this constitutional order or create them again and again. The list of evidence for this has become very long and is growing longer almost every day. German politics and the state institutions it has abused have seriously undermined democracy, the rule of law and the separation of powers, restricted fundamental rights beyond the constitutional text, and only partially respected and protected human dignity. The family as “the natural nucleus of society” (article 23 of the International Covenant on Civil and Political Rights) has been subjected to numerous challenges, and education and the transmission of cultural substance are in serious disarray.² 
  And the office whose name would suggest that it is responsible for protecting the constitution, namely the German Federal Office for the Protection of the Constitution (and its state offices), has been working hard for a few years now to pillory justified criticism of this development. For the past two years, this has involved the deliberate construction of a term with no constitutional basis: the so-called “constitutionally relevant delegitimization of the state”. The German professor of constitutional law Rupert Scholz speaks of an “anti-opinion terror”, of a constitution protection office President violating the constitution, of German “politics that are made almost exclusively according to ideological standards, no longer according to fundamental values”.³

What to do?

Many citizens in Germany are speaking out publicly, openly opposing the government either individually or together with others. However, it can also be observed that anti-freedom tendencies are on the rise. A lack of will for peace and the disenfranchisement of citizens go hand in hand with public defamation campaigns; with an image of the enemy created by the de facto aligned mainstream media which is full of lies; with aggressive, authoritarian disparagement; with the abuse of language (“Self-Determination Act”, “Democracy Promotion Act”, etc.); with social exclusion; and with coercive state measures. What is to be disrupted and prevented above all: independent thinking, the free word, genuine compassion, and real community building.
  Respect for those who do not allow themselves to be intimidated by this. And the recent judgement of the Federal Constitutional Court on freedom of expression shows that resolute opposition can also be worthwhile. But no one can yet say how far politicians and the state are prepared to go. There is a very high probability that the thumbscrews will be tightened as the “delegitimization of the state” increases and that the propaganda carousel will accelerate. Everything is being done to divide German society more deeply, even within the citizenry – so that some can be set against others.

A long-term (re-)construction

After 30 January 1933, many Germans left the country – had to leave because their life and limb were in danger. Or they chose the path of internal emigration. We have not come that far in today’s Germany. Nevertheless, living as a German abroad can feel like being in exile.
  After 30 January 1933, the German exiles took very different paths with their exile. Some were desperate, unable to find a new home in another country, unable to bear the German tragedy. Some even took their own lives. Others took a public stand from exile. Thomas Mann’s radio programmes, “Deutsche Hörer!”, which were broadcast by the British BBC in the years 1940-1945, became famous and were listened to by many Germans – despite the very high risk – and helped to lay the intellectual groundwork for the time that followed. Still others worked intensively on concrete concepts for the political, economic and social future of Germany after the end of dictatorship and war. One of them was the German economist and social philosopher Wilhelm Röpke, who first fled to Turkey and then to Switzerland, with his fundamental work on the social market economy.
  After the war, among the exiles and internal emigrants mainly those had a constructive effect who were able to distinguish between the people and the politics of the powerful, who denied any collective guilt and who met the Germans without arrogance.
  No matter how you see your own status and no matter where you organise your life: Not to wrangle and not to despair, but to work on the future of the country is probably the best way to support today’s Germany. Rupert Scholz says at the end of the interview in Weltwoche4: “Yes, ultimately I am an optimist when it comes to Germany.” But his last sentence is also important: “It will take time; it will take a lot of time.”  •

¹ cf. Current Concerns No 18 of 29 August 2023
² Such observations are also made by personalities who otherwise belong to the mainstream or can still publish in the mainstream. Two recent examples of this are an interview with Birgit Kelle about the German plans to legalize surrogacy and the socio-political environment of these plans (https://www.nzz.ch/feuilleton/leihmutterschaft-wird-angesichts-von-paris-hilton-oder-kim-kardashian-glamouroes-vermittelt-ld.1824887 of 11 April 2024) and an interview with the constitutional law professor and former German minister of defense Rupert Scholz in Weltwoche from 18 April 2024 (https://weltwoche.ch/story/brandmauern-haben-in-einer-demokratie-nichts-zu-suchen/)
³ ibidem
⁴ ibidem