When the republic celebrates the 75th anniversary of the entry into force of its Basic Law in a few days, the symbolic anniversary only applies to one part of the country, the western one. In the other part, in the five “new” countries, the celebrant can only look back on a good 34 years of history. Since reunification, the Basic Law, which was still intended to be provisional in 1949, has also been valid in the territory of the former GDR, the “accession area” – so called because the former socialist state of the Federal Republic was founded on the basis of a resolution by its last, freely elected parliament in accordance with Article 23 of the Basic Law Joined October 3, 1990. (Incidentally, in the same way that Saarland became part of the Federal Republic in 1957.)
Alternatively, a unification of the two German states into one country with a new constitution would have been possible, because since its entry into force, the Basic Law has provided for its own abolition in its last article number 146 as soon as “a constitution comes into force that has been approved by the “was decided by the German people in a free decision”.
What were the consequences of formal accession?
Unity via Article 23 or via Article 146? Accession or new constitution? That was the question after the democratic revolution in the GDR. And it remains controversial to this day, as a volume published on the occasion of the Basic Law anniversary shows. The contributors with GDR and West biographies attempt to address two questions raised by editor Kerstin Brückweh in her foreword: Why wasn’t the Basic Law replaced by a pan-German constitution in 1990? And what consequences does the type of reunification through formal accession have to this day for the overall German relationship and the current precarious political mood in the states of Saxony, Saxony-Anhalt, Brandenburg, Thuringia and Mecklenburg-Western Pomerania?
Even more than three decades after reunification, the missed opportunity of a common new constitution is seen as its “birth defect”; In the volume, the historical omission is described somewhat awkwardly as a “non-event” with reference to an essay by the political scientist Wolf-Dieter Narr from 1994. Editor Brückweh, who was born in Hanover and is now a history professor at the University of Frankfurt/Oder and is herself an East-West border crosser, takes a similar critical view. Nevertheless, she recently gave one Mirror-Interview, it is important not to overestimate the constitutional question for the East German mind, because there were more important questions for many former GDR citizens during the years of transformation, because: “Anyone who loses their job doesn’t think about the Basic Law.”
The “Round Table” wanted a new GDR constitution
Nevertheless, the volume recalls three constitutional initiatives from 1989 to 1994, which are now almost forgotten because they were not successful. The lawyer Rosemarie Will reports from ambitious draft constitution of the “Round Table”, which advocated a reformed GDR, but was quickly overwhelmed by real political circumstances. After the first free election in the GDR on March 18, 1990, resulted in a victory for the conservative party alliance supported by Chancellor Kohl and in a defeat for the civil rights movement, which, like the SED successor party PDS, launched its election campaign with the slogan “Article 23: No connection “under this number”, the path to a quick unification was set. The majority of East Germans wanted the D-Mark and not a new GDR constitution, so that the newly elected People’s Chamber decided in one of its first meetings by 179 votes to 167 not to further discuss the Round Table’s draft constitution. Will, at the time a law professor at Berlin’s Humboldt University and a member of the editorial committee of the Round Table’s New Constitution working group as one of three East German experts, unconvincingly blames the “conflicting will of the federal government” for the failure of the draft constitution at the time in her contribution.
A board of trustees was also not heard
A little later, Will was also involved in the failed attempt to draft an all-German constitution when a “Board of Trustees for a democratically constituted federation of German states” became public in June 1991, in which former GDR civil rights activists joined forces with federal German intellectuals who were skeptical of the nation state, including Günter Grass, proposed a replacement of the Basic Law according to Article 146. The volume contains two contemporary documents from the “Board of Trustees”, but no individual contribution to the initiative, “since there has been little research on it to date”.
In his contribution, Christoph Schönberger describes how, after the two civil society initiatives, the “routine professional politics in a historic state of emergency” became active and the Bundestag and Bundesrat in one “Joint Constitutional Commission” From November 1991 to October 1993, they did not discuss a new constitution, but discussed changes and additions to the Basic Law, which resulted in at least two impulses from the civil rights movement, formulated as state goals, finding their way late into the Federal German constitution: the active enforcement of the Equality between women and men and the Protection of the natural foundations of life. Despite hundreds of thousands of citizens’ submissions, the inclusion of children’s rights in the Basic Law and the extension of the constitutional protection of marriage to non-marital partnerships failed, primarily due to conservative reservations, as lawyers Eva Schumann and Anne Röthel explain.
Even if the arguments are convincing, according to which, firstly, for domestic political (time) reasons and secondly because of its proven nature, the Basic Law was retained and the “constitutional momentum” was missed in 1990, the question remains open as to why the federal government did not vote together with the first election of an all-German parliament In December 1990, a referendum was held on the question of whether the Basic Law should be declared the all-German constitution. She would have been pretty sure of a majority, because even before the end of the GDR, many of its citizens identified more with the Federal Republic and the Basic Law than with the socialist experiment and its supposedly democratic constitution, which Anselm Doering-Manteuffel did in his reflections on the repercussions of the Cold War overlooked.
Foreign policy is left out
A blank space in the volume, in which the perspective of younger authors born after 1990 is unfortunately missing, remains the precarious foreign policy situation in which the decision-makers were operating at the time, for example with a view to the faltering conditions in the Soviet Union. The Leipzig political scientist Astrid Lorenz makes an exciting comparison with the lack of constitutions in post-socialist Poland and Hungary.
A few annoying errors in details (the penultimate GDR finance minister was called Walter Romberg and not “Rohmberg” and Dieter Grimm was a judge but never president of the Federal Constitutional Court) do not detract from the volume’s merit; the constitutional debates of the “turning point of 1989/90” are brought back to mind to call out and stimulate a new discussion about it – even if the questions posed at the beginning are not really answered in a new way.
René Schlott is a historian and journalist in Berlin.