75 years ago the Basic Law came into force, a constitution in which many elements of a defensive democracy were built in. But ultimately the republic must be defended by the citizens.
In the landscape of ruins left behind by Hitler’s World War 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 by chance from bombing.
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 – from September 1, 1948 to May 1949. It was decided 75 years ago today and was officially announced on May 23rd.
Lessons from history
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 should only be able to be overthrown if parliament could simultaneously agree on a new one. This was not the case in the Weimar Republic, which reinforced the impression of paralysis. Most importantly, at the insistence of the Western occupying powers, basic rights were placed right at the top of the text. And a powerful constitutional court was established. “It makes the Basic Law speak and applies it to new living conditions,” says former Federal Interior Minister Gerhart Baum (FDP).
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.”
Elements of defensive democracy
With the experience of National Socialism still directly in mind, the authors of the Basic Law incorporated many elements of defensive democracy into the new state order. These include high hurdles for banning parties, for withdrawing fundamental rights or for changing essential points in the Basic Law. “But here too we have to realize that there is no complete legal protection of democracy,” said Voßkuhle. “Ultimately it depends on the extent to which citizens support the democratic order. We are currently observing a global trend towards electoral autocracy.”
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 courts as supervisory authorities. There are still elections there, but the government is trying to ensure that power no longer slips away. Voßkuhle does not doubt that this would also be possible to a certain extent in Germany.
How can the Federal Constitutional Court be better protected?
Against this background, there has been a long-standing discussion about how the Federal Constitutional Court can be better protected from enemies of democracy. Specifically, the aim is to stipulate the term of office of constitutional judges in the Basic Law: This could prevent judges from being removed from office relatively easily if there is a change in government.
“Democracies always have a tendency to turn against themselves,” says Voßkuhle. There is always a certain level of mistrust on the part of citizens as to whether politicians keep their election promises and are not guided by selfish motives. And vice versa, politicians are always exposed to the temptation to stop playing by the rules once they have been elected. “That’s why there’s always a struggle over the structure of democracy. It can’t be any other way. I would also warn against believing that there was once something like a golden age of democracy.”
Contemporary witnesses: Democracy today is threatened by indifference
There are only a few people alive today who can remember the founding of the Federal Republic 75 years ago – and therefore also the war and the Holocaust. Voßkuhle’s father, who died in 2010, was someone like that – he had been an officer in World War II. “How many nights did we sit together and talk about National Socialism?” remembers the now 60-year-old son. “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 disappears. 91-year-old Gerhart Baum, who still has memories of the war, sees it similarly. “In fact, sensitivity is lost if it is not repeatedly activated,” he tells dpa. Today, democracy is not only threatened by enemies of the constitution, but above all by indifference.
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.