The legacy of the “mothers and fathers” of the Basic Law

May 23, 1949 was the birthday of democracy in the Federal Republic. The Basic Law promulgated at that time embodies lessons from the Nazi era. Who were the “mothers and fathers” of the German constitution?

Konrad Adenauer, Theodor Heuss and Carlo Schmid were the well-known names of the Parliamentary Council that drafted the Basic Law in 1949. But who were the “mothers and fathers” of the Basic Law? And what did they do during the Nazi era?

A total of 77 people belonged to the council. There were 65 members with voting rights, five representatives from Berlin without voting rights and seven replacements. One should not give the impression that the members of the Parliamentary Council “were exclusively opponents of National Socialism,” says law professor Alexander Thiele from Berlin. “The Parliamentary Council certainly consisted of some members who had had a Nazi career.”

There were members with Nazi careers

For example, there were the CDU politicians Paul Binder and Hermann von Mangoldt. During the Nazi era, Paul Binder was deputy director at the Dresdner Bank and headed the “Central Office for Aryanization”. He was therefore involved in the forced sale and expropriation of Jewish assets. In the 1940s, he worked closely with SS-owned companies in occupied Eastern Europe and worked for armaments companies.

Hermann von Mangoldt came from an old noble family. He made a career as a legal scholar in National Socialist Germany. In legal writings he justified the disenfranchisement of Jewish citizens through the Nuremberg racial laws. He wrote anti-Semitic sentences such as: “The danger of racial alienation was only seriously threatened by the Jews.”

But also many with distance from the Nazi state

However, if you look at the biographies of all 77 members, including only four women, one thing is striking: none of them can be proven to have been a member of the NSDAP. Katharina Mangold, a law professor at the University of Flensburg, points out that the Nazi era was at least accompanied by a career break for many members of the Parliamentary Council.

Most of them were certainly not resistance fighters, says Mangold. But there were some who were deported to concentration camps or prisons under the Nazi regime, or who were forced to emigrate. In 2009, the Bundestag’s research service even came to the conclusion that “one of the unifying bonds of the members of the council, across all party lines, was their opposition to National Socialism.”

The CVs speak for themselves

For example, SPD politician Fritz Eberhard: That was the cover name of the journalist Hellmuth von Rauschenplat. He had to go into hiding immediately after 1933. He later managed to escape to London. There Eberhard worked for the BBC.

Hans Reif of the FDP lost all his positions as an economic official in 1933. Together with his wife, he took in four Jewish children.

CDU man Jakob Kaiser was a member of the Reichstag for the Center Party. He refused to take part in the dissolution of the Christian trade unions. His family was placed in so-called “collective custody”.

And Friederike Nadig from the SPD was dismissed from the public service in 1933 and banned from working.

The Basic Law as a historic answer

In the Parliamentary Council, people must have met, some of whom had had Nazi careers, and others who had “just escaped from the concentration camp with their lives,” emphasizes law professor Alexander Thiele. An exciting encounter. But one that had a clear motto: Never again!

The Basic Law was written in this spirit. It was intended to draw lessons from the Nazi era. Gerhart Baum also stresses this. The former Federal Minister of the Interior and FDP politician was 16 years old when the Basic Law came into force. He stresses that the Basic Law was the first time that Germans had truly arrived at democracy.

“And they have broken away from a development that has determined their entire history, namely a nationalistic ethos, a society based on race and people and ethnicity and national community and nationalism,” says Baum. “That has been replaced by the Basic Law. Subjects have become citizens.”

This historical development can also be seen in the way the Basic Law is structured. Fundamental rights are deliberately placed at the forefront of the constitutional text, unlike in the Weimar Constitution. And an eternity clause secures the principles of our constitutional law: human dignity, democracy, the rule of law, the federal state and the welfare state. Even with a two-thirds majority in the Bundestag and Bundesrat, they cannot be abolished.

Historical memory is under attack

The Basic Law embodies lessons from the Nazi era. For a long time, there was a consensus in Germany that remembering Germany’s dark history was part of “constitutional patriotism.” But this consensus is being attacked by AfD politicians.

The Thuringian AfD leader Björn Höcke called for a “180-degree turn in memory policy”. The Office for the Protection of the Constitution in Thuringia classifies the AfD regional association as definitely right-wing extremist. In doing so, it also has the AfD’s history policy in mind, the attempts to emphasize the victim role of the Germans in the Nazi era in particular: The AfD often “fails to mention that the Second World War was a war of annihilation that started on German soil and was fought in the spirit of a racial-biological ideology”. This is what the 2021 report of the Office for the Protection of the Constitution states.

The Thuringian Office for the Protection of the Constitution is expressing a fear, namely that it poses a danger to the democracy of the Basic Law if the history of its creation is forgotten.

You can listen to the radio and podcast feature “Our Basic Law – In good shape for the future?” by Max Bauer in the ARD audio library.