On May 23, 1949, the Basic Law for the Federal Republic came into force. Its architects wanted to create a bulwark against future dictatorships. But does the Constitution, which turns 75 years old today, stand up to the present?
The year 1949: The Nazis are defeated, the Third Reich is destroyed. Germany is literally and politically in ruins. The occupying powers must plan the future of a defeated nation and set a direction without immediately awakening great power fantasies. And so they have a document drawn up that is intended to prevent another dictatorship and establish the new Federal Republic: the Basic Law.
The authors themselves had experienced how the Weimar Republic was destroyed from within and how a democracy had turned into a dictatorship. Their focus was therefore on creating a robust democratic basic order in order to prevent authoritarian regimes in the future at all costs. The first German Basic Law came into force on May 23, 1949 and today it is 75 years old. Not a very short time, considering the crises that have hit the Federal Republic since then. Does the text hold up to the present?
Basic law against “Day X”
The Basic Law (GG) of 1949 was created against the background of the National Socialists’ seizure of power on January 30, 1933. Extremism research calls such a situation “Day X”: the government of a country is surprised by a revolution from within or a total invasion from outside fell. The Weimar Republic was not prepared for this; its constitution had three fundamental errors: Articles 25, 48 and 53.
Article 25 read: “The Reich President may dissolve the Reichstag.” Between 1930 and 1932, Reich President Paul von Hindenburg did this three times. The NSDAP in particular benefited from this, receiving 33.1 percent of the vote in the 1932 election.
Article 48 stated: “The Reich President may (…) take the measures necessary to restore public security and order.” This was a power that was formulated very vaguely and could be used extremely extensively. The Reich President could suspend basic rights in whole or in part. This weakened parliament enormously.
Article 53 read: “The Reich Chancellor (…) is appointed by the Reich President”. No parliamentary majority was necessary for this. The appointment of Adolf Hitler as Chancellor on January 30, 1933 effectively marked the end of the Weimar Republic.
The Parliamentary Council, which drafted the Basic Law, drew appropriate conclusions from these and other weaknesses in the Weimar Constitution.
Basic law without emergency clause
When it came into force, the Basic Law did not contain a so-called emergency clause that would have allowed a government to restrict certain basic rights in exceptional situations such as wars, natural disasters or serious economic crises. It was not until 1968 and after a long political struggle that such a provision was subsequently added to the Basic Law as Articles 115a to 115l.
To this day, they regulate the case of defense (armed attack on Germany), the case of tension (imminent threat of war) and the internal emergency (particularly serious danger to public order). They also determine what far-reaching measures the federal government can take in these cases.
The emergency laws are still controversial but have never been used. Their activation is subject to strict conditions and is controlled by both Parliament and the Federal Constitutional Court.
With net and double bottom
The eternity clause (Article 79 paragraph 3) is an integral part of the Basic Law. It states that changes that affect the division of the federal government into states, the basic participation of the states in legislation or the principles laid down in Articles 1 and 20 are not permitted. The clause prevents these fundamental constitutional principles from being compromised, even if there were a parliamentary majority to do so.
Except for the principles protected by the eternity clause, the Basic Law can be adjusted in accordance with Article 79 paragraphs 1 and 2. However, only if two thirds of the members of the Bundestag and two thirds of the Bundesrat agree. Quick or fundamental changes are therefore extremely difficult to implement.
Another important principle is constitutional jurisdiction. The Federal Constitutional Court therefore plays the role of an arbitrator. It is intended to ensure that all player decisions (laws) are in accordance with the basic rules of the game (constitution). If this is not the case, the court can intervene and declare a law invalid. It is also authorized to ban parties that violate the free democratic basic order.
Weakness of the controlling authority
And yet the fact that the Constitutional Court acts as an arbitrator overseeing the Basic Law is also the greatest weakness of our constitution. A number of the court’s regulations can currently be changed with a simple majority in the Bundestag. In both Poland and the USA, the independence and impartiality of the highest courts have been undermined in this way.
Once the Federal Constitutional Court is paralyzed, there would be only a few obstacles to overcome in order to reshape the constitutional order by a simple parliamentary majority vote. Laws such as the Federal Elections Act, the Political Parties Act or the Rules of Procedure of the Bundestag could all be changed by a simple majority.
This would allow a parliamentary majority to control the electoral system, party funding and the rights of the opposition. This control could be used to weaken or divide political competitors, similar to what has happened in countries such as Poland and Hungary.
The government and the opposition therefore want to better protect the Federal Constitutional Court from possible attempts to disempower it, especially by extreme parties; a first draft law on this has already been submitted. Accordingly, corresponding regulations should be included in the Basic Law.