A Bavarian legal scholar who has been attached to the U.N. Secretariat and to the E.U. Commission in Brussels, Josef Schüsslburner has disagreements with the German Basic Law, enacted in 1949 as an interim constitution for the West German Federal Republic.  The author describes this guiding document and the circumstances that helped shape it as “democracy’s peculiar path for the Germans.”  It is a path that mandates an “order of control” (Herrschaftsordnung) that leaves little room for real constitutional freedom or for any meaningful practice of popular government.

While the Basic Law (Article 146) claims to be only provisional and, in fact, subject to replacement by a new, permanent constitution once Germany is reunified, its origins determined both its later development and the virtual impossibility of superseding it.  The law came out of Germany’s defeat and demoralization and has special features that her occupiers inflicted on their subjects.  These include a federal court for interpreting the Basic Law (Bundesverfassungsgericht) and the federal and provincial agencies known as the Verfassungsschutz, which were organized in 1949, at the command of the Allied Occupation, to document “extremist” threats to German democracy.  Such institutions interpret the constitutionally guaranteed right to make fundamental changes in the Basic Law as an antidemocratic attack on German “militant democracy” (wehrhafte Demokratie).  Although Articles 79 and 146 provide for the possibility of amending part or all of the Basic Law, the “state protectors” of Germany’s democratic transformation and of the entrenched parliamentary blocs insist that any public advocacy of constitutional revision, particularly by conservative nationalists, should be suppressed.  Courts have come down hard on those who express politically uncongenial opinions, and those groups that call for a constitution without snooping agencies or party bans can expect to be “investigated.”

Schüsslburner has zeroed in on the glaring contradiction between the German government as it actually is and how it depicts itself.  He is on target when he characterizes the Federal Republic, in the terminology of Carl Schmitt, as “a sovereign dictatorship,” a form of permanent despotic control that affects the way people live.  The Allied restrictions on a defeated Germany—imposed (supposedly) to save her and her neighbors from a re-eruption of German nationalist passions—and the Allied espousal of a plan for German “reeducation” shaped West Germany’s constitutional horizons.  The constitution points back to Allied directives—to what Schüsslburner styles a “governmental prototype,” in the way that it monitors political opinion and empowers courts to ban undesirable parties and organizations.  It was possible, however, to amend that dictatorial pattern once the occupiers were gone.  Instead, judicial democracy became a permanent and accelerating German practice.  And, since the ascent to power of the radical, antinationalist left—what, by now, has grown to become Germany’s governing class—this rigidly controlling government, practicing forms of censorship reminiscent of East German communism, has gone largely unchallenged.  (German parties of the right-center are even more weak-kneed than our Republicans and avoid identification with “extremism,” which, in Germany, means the nationalist right.)

Like the Incorporation Doctrine in the United States, by which federal judges, through the 14th Amendment, can turn the Bill of Rights against the sovereign states that the amendments were meant to shield, German jurists and courts selectively invoke those parts of the Basic Law that can be turned against opponents of “militant democracy.”  At the same time, they ignore or slight those “Fundamental Rights,” such as freedom of expression, that come at the beginning of the German constitution.  This arbitrary judicial rule contradicts even those classical liberal traces that can be found in the Basic Law.  From that law, it would appear that the state should not take sides in the competition for political office, providing that legal procedures are observed.  Nor would it seem that the Basic Law empowered the Bundesverfassungsgericht to keep individuals from campaigning for office, unless they are doing something quite concrete, like stockpiling weapons or inciting violence, to “remove” or “damage” the regime.  Unfortunately, this constitutionally expressed fear of “damaging” Germany’s freiheitliche demokratische Ordnung and the referring of decisions regarding such threats in Article 21 to the federal constitutional court open the door to inventive interpretations of what constitutes such an assault.

German “democrats” have set out to give their allegedly benighted countrymen a “community of values” that bars opposition and criminalizes even those who argue that today’s German republic is less concerned about intellectual and political freedom than German governments of the past.  (Schüsslburner is correct to suggest that the German Second Empire, not to mention the Weimar Republic, was far more tolerant of opposing political views than the current version of “militant democracy.”)  Moreover, Germany’s ideological dictators, assisted by the press, present themselves as “constitutional patriots.”  And they deny loyalty toward a specifically German nation, which they pelt with insults.  These enforcers of universal values and constitutional procedures are not genuine legalists, however.  They genuflect before the Basic Law only to the extent that it can be made to serve their purposes.  Thus, the rights to express, publish, and disseminate opinions in Article 5; the stress on the indispensability of party formations for the “political self-development of the people” in Article 21; and the designation of the “people” in Article 20 as “the source of state power” are all filtered through more useful passages in the Basic Law.  Politically incorrect publicists and party organizations are said to threaten the constitutional order, a problem that German censors consider to be addressed in Articles 18, 20-4, and 21-2.  As Schüsslburner properly notes, however, the rights conferred on the German people, as well as on the state, to resist overt threats to the constitutional order do not consistently mean what those rights are now made to signify: disagreeing with an imposed ideological value consensus.  The law, he explains, is dealing with attempts to overthrow the constitutional order by force, if evidence can be furnished that such a threat exists.  And the Basic Law does provide for the peaceful alteration of the established order, in Articles 79 and 146.  Although not exactly a fan of the Basic Law, Schüsslburner believes that the thought control and restriction of parliamentary choices now practiced in Germany go beyond any reasonable constitutional interpretation.  He stresses the possibility of making such a document work, as long as the courts are not allowed to engage in “extreme interpretations.”

Schüsslburner demonstrates how Germany’s judicial governance has worked against “dangerous” opposition and disagreeable thought.  (Were it not for the embarrassing discovery last year that the “investigated” National Democratic Party had been heavily infiltrated by the Verfassungsschutz, German judges would have succeeded by now in banning this party of the nationalist right.)  It is also no wonder that the courts and major party blocs condemn “extremist” suggestions about reconstructing the German constitution.  After all, the devotees of German ideological democracy are not likely to welcome a new basic law without those features that now help them to exercise their power.  They also hope that Germany can be fully incorporated into a denationalized European Community; to that end, they quote arrangements for this transfer of authority in Articles 23 and 24.  Why should Germany’s political bosses support a new constitution that might reflect a German national consciousness while endangering their postnational agenda?  They have even refused to acknowledge the right of their subjects to vote on the European Union’s new constitution.  Why allow people to make “undemocratic” decisions?

Note that Schüsslburner’s arguments, which require a careful reading of the Grundgesetz and some previous exposure to German constitutional history, have not gone without criticism from the German right.  Junge Freiheit, for example, has treated dismissively his contention that the antinational German government and its multicultural reign of terror can be traced back to the Basic Law—or, at least, to its contradictions.  While Schüsslburner may push his interpretation too hard, by reading certain parts of that document more negatively than the text would warrant, his critical point is correct.  It is also by no means original.  Erik von Kuehnelt-Leddhin and Caspar von Schrenk Notzing both wrote convincingly on the same subject, as the liberal-constitutional, anti-Communist phase of the Federal Republic was coming to an end.  The association of the West German government with conservative Catholic Konrad Adenauer and the application of state bans to keep communists, as well as Nazis, out of public view were characteristic of a postwar German dispensation that was ending by the late 1960’s.  Hard though it might be to believe, the postwar German Social Democratic leader and opponent of Adenauer, Kurt Schumacher, sounded like the current German right in his defense of German nationalism.  Not until the 1960’s could one view with justification the German Social Democrats at the federal level as a distinctly antinationalist party fixated on the sins of German history.  By the 70’s, this new direction became even more evident.  Willi Brandt and his penitential politics and a radicalized generation of younger Germans, at war with their “Nazi” parents, would give the Federal Republic a different spin.  The enemy for them was not generic totalitarianism, including the communists, but “fascism,” which meant preeminently the German past.

Schüsslburner should have emphasized more than he does that, without the interruption of the Cold War, the Basic Law might have pushed Germany leftward faster.  Like Aristotle, he correctly perceives that constitutions both correspond to and favor specific social characteristics.  But this observation also did not elude the Allied High Command and the mostly antinationalist architects of the Basic Law.  Their concerns are embodied in what was to be a provisional constitution but, at the same time, an intended prototype for any future German government.  Thus, we stumble here over features—e.g., a phased transition to international government, the required granting of asylum, the exclusion of preemptive war, and the solemnization of human rights—that make this law appear to foreshadow the present European left.  Postwar Germany was turned into a laboratory for social experiments that eventually migrated elsewhere in the West.  Curiously, those who approve of such aspects of the Basic Law never show that it was necessary to keep the Germans from falling back into Nazi habits.  There is no reason to assume that this would have happened once the Third Reich had left Germany devastated and humiliated.  And it is also not true, as Schüsslburner reminds us, that the Germans had no constitutional models of their own to consult.  Adaptable constitutional frameworks abounded in Central Europe from the Holy Roman Empire onward, and some of their features, as we learn from this book, were incorporated into the work of the postwar constitutionmakers.  There were also 19th-century liberal constitutions that had functioned in southwestern Germany since the end of the Napoleonic Wars.  The idea that Germany had no tradition of constitutional self-government—except for the Weimar failure—until the Allies came along is plainly untrue.  What the Germans gave themselves in 1949, partly through advice they could not refuse, was not the best government they ever had.  It was an imperfect constitution from the standpoint of national self-government but the only one that their former enemies would allow them to live under.  In my view, this Grundgesetz was defensible, given the circumstances in which it was prepared and given the presumption that it could be altered.  What happened thereafter, with shades of 1933, was that the Basic Law became window dressing for a legal revolution.  Schüsslburner traces the fateful course by which this development occurred.

[Demokratie-Sonderweg Bundesrepublik: Analyse der Herrschaftsordnung in Deutschland, by Josef Schüsslburner (Fulda: Lindenblatt Media Verlag) 798 pp., $39.80 EUR]