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The key to Germany’s survival The post-war constitution is increasingly under threat

Keep calm and carry on (JOHN MACDOUGALL/AFP via Getty Images)

Keep calm and carry on (JOHN MACDOUGALL/AFP via Getty Images)


May 24, 2024   5 mins

For all the bedlam (that’s das Durcheinander to you), modern Germany isn’t so bad. Bismarck’s Second Reich lasted 47 years and ended in the Great War. The 14-year Weimar Republic was easily dissolved by the Nazis, while the Third Reich was laid to waste after a mere 12 years. In light of everything that came before, the Federal Republic, born 75 years ago this week, holds up pretty well: the constitutional order survived an eruption of Left-wing terrorism in the Seventies, the upheaval of reunification, and various battles against “enemies of the constitution”. Today, 77% of Germans rate the constitution as “good” or “very good”.

And yet, governing Germany, that amorphous blob at the centre of Europe, has been no picnic over the centuries. For most of the past millennium, there was hardly any Germany at all — or, depending on how you look at it, there were dozens, sometimes hundreds of Germanies. The incarnations of the Holy Roman Empire (which was nothing of the sort), the Reformation, the sectarian bloodbath known as the Thirty Years War, the German lands’ centuries-long role as buffer between greater powers — none of it was conducive to the creation of a stable nation state out of unruly Saxons, Bavarians, Franks, Prussians, Swabians, Hessians, Thuringians, Friesians and all the rest of them.

Napoleon’s occupation in the early 1800s stirred German nationalists into action. They dreamt of forging a proper country out of this mess. Bismarck, that crafty Prussian, finally managed through “blood and iron” to unify most of the 30-odd German states around at the time. Then came the twin disasters of the First and Second World Wars, and the tragic attempt at liberal, federal democracy wedged between. German unity paired with an overly ambitious centralised German state — most extreme under Hitler — ended in unspeakable suffering.

Against such a backdrop, Article 1 of the Grundgesetz (Basic Law) is a moment of enlightenment: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” And on it goes, with the right to “develop one’s personality freely” and not to be “discriminated against or favoured because of one’s sex, descent, race, language, homeland and origin, faith, religious or political views”. Not even five years had passed since the end of Auschwitz, and here were 146 articles detailing a radical departure from the savagery of the brownshirts. Signing this document must have felt like spitting in the faces of the surviving Nazis. As a German, it still makes me teary-eyed.

The document created something new for the defeated, humiliated, morally bankrupt country — at least the western part — to rally around. The Volk had hit rock-bottom, and the constitution was the operating manual for a fresh start. And it’s the glue that holds modern Germany together. It fine-tuned power relations between the LĂ€nder (federal states) and the central government better than any previous attempt. The regions and cultures of this country vary wildly — some are practically nations in their own right with their own versions of pork, starch and alcohol. Catholic Bavaria, with its Lederhosen and Dirndls, jovial hospitality, crucifixes in public buildings and impossible-to-understand dialect, has more in common with Austria than the subdued, Lutheran and windswept Schleswig-Holstein, which is culturally closer to Denmark. Many in the former GDR, especially in Saxony, feel an affinity towards Russia and antipathy towards the US and Nato, while most of my family stem from Hesse in the West, a region heavily influenced by American culture, thanks to decades of military presence.

This isn’t to say the federal framework — which also prevents too much power from amassing in a single institution in Berlin — is perfect. Massive redundancies are baked into the system. From tiny city-state Bremen (population 700,000) to North Rhine-Westphalia (18 million), each Bundesland has its own domestic intelligence service (a Verfassungsschutz or Office for Protection of the Constitution), tasked with spying on “anti-constitutional” organisations and individuals. Coordination between these agencies can be woefully inadequate. Better communication might have prevented the deadly 2016 Islamist truck attack on a Berlin Christmas market. Federalism has also been an obstacle to technological progress: poor e-government coordination between Berlin and 16 states has left the digitalisation of German bureaucracy in a sorry state of durchwursteln (muddling through, literally sausaging through), lagging years if not decades behind its European neighbours.

The Grundgesetz has created a shared identity, though. For the Nazis, myths of racial purity and superiority were supposed to be the unifier. In the Federal Republic, more innocuous narratives emerged. There’s the one about German intellectual excellence (“Land of poets and thinkers”), the one about engineering excellence (“Autoland Deutschland”), the one about a shared consumer culture (Haribo, VW, Playmobil etc.), and let’s not downplay Fußball and the accomplishments of the Nationalmannschaft. But perhaps underpinning it all is “constitutional patriotism”, a term promoted by West German thinkers such as JĂŒrgen Habermas. In short, it’s hard to be proud of our country after Nazism, but we can at least be proud of our constitution and the liberal state we built around it.

And yet, constitutional patriotism feels perhaps overly academic, dry, even naive in today’s polarised, fraught environment. Not least because the Grundgesetz and the values it embodies are under constant attack. The most obvious threat comes from those who don’t even recognise it, like the ReichsbĂŒrger, a peculiar and somewhat ludicrous Right-wing movement whose leaders went on trial this week for planning a coup. Nostalgic for the pre-Hitlerian Reich, they say the Federal Republic has no sovereignty, refuse to pay their taxes, and print their own passports. Led by the self-declared Prince Heinrich XIII, they argue — correctly, in fact — that the Grundgesetz was intended as a temporary document, valid only until the unification of all the Germans (meaning West and the GDR). A permanent constitution would have to be approved by the entire Volk, even though East Germans did eagerly vote for reunification, accepting the western constitution part and parcel.

The AfD, by contrast, are playing a longer, subtler game. Earlier this year, a purported AfD “remigration” plan was uncovered by journalists: not just immigrants but also non-white German citizens were to be deported. This alarmed the broad centre and millions took to the streets in protest. “Never again is now” stickers appeared in the window of my local ice-cream shop, as if the country was a hair’s breadth from returning to genocidal fascism.

“Constitutional patriotism feels perhaps overly academic, dry, even naive in today’s polarised, fraught environment”

The AfD denies that “remigration” is its official part, knowing that it would certainly violate the Grundgesetz. Turning the issue on its head, the AfD claims it is the true defender of the constitution, pointing to its opposition to the government’s pandemic measures. And yet, the Grundgesetz is at the heart of the issue that has ignited support for the AfD: immigration. The right to political asylum was anchored in article 16, as a reaction to the failure of the international community to take in those who had fled the Nazi regime. Fast forward to last year, and 350,000 migrants claimed asylum in Germany — and each has a constitutional right to have their application fairly assessed. Tens of thousands of those claims will be rejected, but that takes years, while deportation often never happens. In other words, the Geist behind the AfD is paradoxically being enflamed by the Grundgesetz.

Indeed, not a day goes by without the constitution being put to the test. The harsh treatment of pro-Palestinian protestors by German police raises questions about the tension between freedom of speech and freedom from alleged anti-Jewish hate speech. Add to the mix the polarisation fuelled by social media, the uptick in attacks on politicians across the spectrum, and fragmentation of the information space by foreign bots and AI content — and the 75-year-old founding document is heading through a rocky patch.

Faced with these crises, more durchwursteln is to be expected. This is how the centre holds in post-war German democracy. And while it’s not exactly sexy, this is still easily the most peaceful, most prosperous Germany we’ve ever had. All of which is a long way of saying: Let’s pause for a second, raise a glass. Prost!


Maurice Frank co-founded the English magazine Exberliner and now co-writes the newsletter 20 Percent Berlin. 

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Paul
Paul
1 month ago

Um, “alleged” anti-Jewish hate speech? Are we once again taking shelter under the “anti-Zionist” fig leaf, or denying the reality of Red-Green Alliance antisemitism altogether? It’s a little late for either.

ChilblainEdwardOlmos
ChilblainEdwardOlmos
1 month ago

“
this is still easily the most peaceful, most prosperous Germany we’ve ever had.”

Keep telling yourself that. 20 years ago perhaps. 2024? AYFKM?

JĂŒrg Gassmann
JĂŒrg Gassmann
1 month ago

It’s a pity the entire political establishment of Germany gleefully tore up the Grundgesetz when it came to “Covid”. Every single one of the hallowed fundamental rights was tossed overboard, and two medical experiments that breached nine of the ten principles of the Nuremberg Code were forced on the populace (they would have breached the tenth as well if they could have).
Judges and scientists were persecuted for doing their job, their homes ransacked by an instrumentalised police, their bank accounts cancelled, their licences revoked, they lost their jobs.
Peaceful protesters holding up copies of the Grundgesetz were violently attacked by out-of-control police.
So it’s a bit too late to muse about the relevance of the Grundgesetz. Sadly.

Michael Cazaly
Michael Cazaly
1 month ago

I imagine the police were not “out of control” but doing exactly what they were told to do ie “obeying orders”…

George K
George K
1 month ago

The entire Europe seems to have dissolved into an amorphous blob of semi independent polities governed by unelected bureaucracies. I’m not sure if Grundgesetz has any symbolic meaning any longer let alone practical. Covid debacle clearly demonstrated the impotence of the nation state order.

Michael Clarke
Michael Clarke
1 month ago

This is the second or third piece I’ve read today about the German Constitution. I shouldn’t be reading three articles a day about it.

Michael Cazaly
Michael Cazaly
1 month ago
Reply to  Michael Clarke

I agree…but the prospective implosion of Germany into an authoritarian state, if it isn’t already, is of interest.
The facade of liberal democracy is disintegrating rapidly. Economic difficulties usually reveal the true personality, whether of individuals or nations.

Carl Valentine
Carl Valentine
30 days ago
Reply to  Michael Cazaly

Surely we can all blame US foreign policy for our ongoing malaise? We need to grow some b*lls and get them out of Europe! They are insidious, they will start a war, we will be bullied into joining, our son’s will die in order to feed USA gluttony! Hideous corporate/elite/cronyists. (I wouldn’t say I have a strong opinion though…)

c donnellan
c donnellan
1 month ago

I look forward to the demise of The Federal Republic and the replacement of its current ruling elites of traitors and American vassals.