75 years ago, the Basic Law came into force, a constitution that incorporates many elements of a defensive democracy. But ultimately, the republic must be defended by its citizens.
In the landscape of ruins that Hitler’s World War had left behind in Germany, the Pedagogical Academy in Bonn looked like a UFO from a distant planet, ages ahead of human civilization. The academy was built between 1930 and 1933 in the sober Bauhaus style and was spared from the hail of bombs by chance. There could not have been a better meeting place for the Parliamentary Council, which drafted the constitution for a new German democracy – the Basic Law – here from September 1, 1948 to May 1949. It was passed on May 8, 75 years ago, and officially announced on May 23.
It was the Germans’ second attempt to establish a democracy. The first failed in 1933 when the National Socialists came to power. The mothers and fathers of the Basic Law wanted to learn lessons from this catastrophe. One of them was to give the head of state a much weaker position. In the Weimar Republic, the Reich President was a kind of substitute emperor who was directly elected and was endowed with enormous powers, which contributed significantly to the destabilization of democracy in the final phase.
A second lesson was the introduction of the constructive vote of no confidence: a chancellor could only be overthrown if parliament could simultaneously agree on a new one. This had not been the case in the Weimar Republic, which reinforced the impression of paralysis. One of the most important things: at the insistence of the Western occupying powers, basic rights were placed right at the top of the text. And an effective constitutional court was established. “It makes the Basic Law speak and applies it to new living conditions,” says former Federal Minister of the Interior Gerhart Baum (FDP).
Debate on better protection of the Federal Constitutional Court
These and more are reactions to Weimar. “Nevertheless, one must say that the myth that was spread in Germany for many years, that Weimar failed because of its constitution, is untenable,” says Andreas Voßkuhle, former President of the Federal Constitutional Court in Karlsruhe, to the German Press Agency. “Weimar lacked, above all, democrats – people who identified with the democratic constitution.”
With the experience of National Socialism still fresh in their minds, the authors of the Basic Law incorporated many elements of a defensive democracy into the new state order. These include high hurdles for banning political parties, for depriving basic rights or changing essential points of the Basic Law. “But here too we must recognize that there is no complete legal protection for democracy,” says Voßkuhle. “Ultimately, it depends on the extent to which citizens support the democratic order. We are currently observing a trend towards electoral autocracy worldwide.”
Viktor Orban’s Hungary and Poland under the former national conservative PiS government are examples of states that systematically restrict diversity of opinion, bring the media into line and weaken the courts as control bodies. There are still elections there, but the government is trying to ensure that it does not lose power. Voßkuhle has no doubt that this would also be possible to a certain extent in Germany.
Debate about better protection for the Federal Constitutional Court
Against this background, there has been a discussion going on for some time about how the Federal Constitutional Court can be better protected from enemies of democracy. Specifically, it is about setting the term of office of constitutional judges in the Basic Law: This could prevent them from being relatively easily removed from office in the event of a change of government.
“Democracies always have the tendency to turn against themselves,” says Voßkuhle. Citizens always have a certain distrust as to whether politicians will keep their election promises and not be guided by selfish motives. And conversely, politicians are always exposed to the temptation to no longer play by the rules once they have been elected. “That is why there is always a struggle over the design of democracy. It cannot be any other way. I also warn against believing that there was once something like a golden age of democracy.”
Today, only a few people are alive who can remember the founding of the Federal Republic 75 years ago – and thus also the war and the Holocaust. Voßkuhle’s father, who died in 2010, was one of those people – he had been an officer in the Second World War. “How many nights did we sit together and talk about National Socialism?” recalls the son, now 60 years old. “That’s gone now.” And with that, a certain degree of sensitivity to the fact that it is not a given to live in a democracy is disappearing. 91-year-old Gerhart Baum, who certainly still has memories of the war, sees it similarly. “In fact, sensitivity is lost if it is not constantly activated,” he told the dpa. Democracy is threatened today not only by enemies of the constitution, but above all by indifference.
Threat to democracy through AfD successes
Voßkuhle talks about a study he recently read: “The American political scientist Adam Przeworski found that between 1788 and 2008, power changed hands 554 times through elections and 577 times through a coup, and that 68 countries, including Russia and… China, has never experienced a change of government between parties as a result of an election.” Democracy has existed in West Germany for 75 years now, in East Germany for 34. These are actually not long periods of time – and yet a certain lack of concern seems to be spreading among many voters.
“We are now in the depressing situation that in some federal states we have to expect that the AfD will become the strongest party in parliament – a party with a problematic understanding of democracy,” says Voßkuhle. “That would be a turning point. That would change the political system. In this respect, we are currently at a moment in which the situation could change.” The year of the Basic Law anniversary is likely to be a decisive one in the history of German democracy.