Category: German Constitutionalism

GBU, German Constitutionalism

The Past Shapes the Future: The Weimar Constitution in context

Wie es eigentlich gewesen ist

Germany is celebrating three important events this year: The 100th anniversary of the Weimar Constitution, 70th anniversary of its Basic Law and 30th anniversary of the fall of the Berlin Wall. To commemorate these occasions, the Center for Constitutional Studies and Democratic Development (CCSDD) in Bologna and The SAIS Observer are partnering for a series on the future of German constitutionalism. This article is the second of eight.

By David C. Unger

This year marks three German constitutional anniversaries: the centennial of the 1919 Weimar Constitution, 70th anniversary of the 1949 Basic Law of the (West) German Federal Republic and 30th anniversary of the 1989 breaching of the Berlin Wall, leading to the absorption of the former East German lander (states) into the Federal Republic the next year.   

Anniversaries are not events. They are reminders of past events, occasions for reflection, celebration, regret or indifference, depending on how the sequels of these past events are currently perceived. Judgments change as new events reshape the questions we ask of the past.

Otherwise, there would be no point writing new histories of the French Revolution, Germany’s 19th century unification or the Versailles Treaty. All of these, particularly the last, shaped the world in which the Weimar Constitution operated. The Versailles Treaty, concluded six weeks before the Weimar Constitution was adopted, left a toxic legacy of constricting German borders, leaving significant German minorities outside those borders, unrealistic reparations and, most crucially, the ideological trope of a Germany that had not been militarily defeated, but politically “stabbed in the back” by socialist politicians, on whom all the above-mentioned problems could be blamed.

Early judgments about the Weimar Constitution were shaped by the 14 turbulent years of the Weimar Republic, then reshaped by the following 12 years of Nazi rule. Today’s judgments must also consider the 70 years of the postwar Federal Republic and more than six decades of treaties that have shaped, and continue to reshape, the European Union. East Germany’s 45 years of constitutionally separate existence must also be taken into account.

This contextual approach does not ignore the dictum of the 19th century German historian Leopold Von Ranke that history is what actually was (wie es eigentlich gewesen); it recognizes that what actually was consisted of complex and multidimensional interacting phenomena, some of which can be better understood in the light of subsequent experience or as new generations confront similar problems.

A new era of income inequality and fiscal austerity lets us see the political stresses of the 1920s and early 1930s in a clearer light. The same goes for today’s heightened politicization of ethnic nationalism and ethnic difference. In fact, much about the interwar decades of the 1920s and 1930s seems eerily relevant to much of today’s politics, as a rereading of Karl Polanyi’s “The Great Transformation” makes clear.

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The Weimar Constitution, drafted by Germans under the watchful eyes of the victorious powers of World War I, had many flaws, such as its now notorious Article 48, which gave German presidents the power to declare national emergencies and temporarily rule without parliament (the Reichstag). As with Donald Trump’s recent use of emergency powers to build a border wall, Weimar’s emergency powers could be cancelled by a vote of the Reichstag (Weimar required only a simple majority, not the two-thirds required to override a U.S. presidential veto).

As the Trump example shows, presidential emergency powers under the Weimar Constitution were not outside the parameters of representative democracy. Weimar’s elected presidents were less free to ignore Reichstag majorities than the pre-war hereditary Kaiser had been.

What made Article 48 so notorious to later eyes was that it paved the way for Hitler’s 1933 Enabling Act. The act, a constitutional amendment and therefore requiring a two-thirds majority, was passed by a Reichstag that the Nazis dominated and intimidated, but in which they held less than a simple majority. As William L. Shirer notes in “The Rise and Fall of the Third Reich,” before the vote, Hitler reassured the Reichstag, “The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures . . . The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one.”

It was the Enabling Act (not Article 48) that allowed Hitler to rule indefinitely without the Reichstag while remaining technically within the bounds of the Weimar Constitution. So was the problem Article 48 or Hitler’s later use of it to legitimize one-man rule? Or, was the underlying problem the political, economic and social crisis of the early 1930s that made this extreme stretching of constitutional emergency powers seem acceptable to the German voters of 1933 and their elected representatives? While Donald Trump is no Adolf Hitler, similar questions could be asked about the use of presidential emergency powers in the U.S.

Another criticized feature of the Weimar Constitution was its provision for national referenda, like the 1934 plebiscite that combined the offices of president and chancellor to make Hitler absolute dictator. While no one would ever mistake David Cameron for Adolf Hitler, the parliamentary paralysis following the 2016 Brexit referendum reminds us that plebiscitary democracy can imperil parliamentary democracy anywhere, not just Weimar Germany.

Weimar Germany has also been faulted for its system of proportional representation, which weakened large parties, empowered small ones and made stable majorities difficult. Yet even in Britain, with no proportional representation, Theresa May has been hostage to the 10 votes wielded by the small, sectarian Democratic Unionist Party.  Once again, was the real problem the Weimar Constitution or the fractured political world it operated in?

Weimar Germany’s most corrosive problem was its violent rejection from birth by the nationalist and militarist right. Under assault by rightist putschists and communist revolutionaries during its first five years, the Weimar Republic seemed to stabilize after 1924, only to be battered again after 1930 by the social economic and political stresses of the Great Depression.

Technically, the Weimar Constitution remained in force until Germany’s unconditional surrender of 1945, used by the Nazis to apply a veneer of legality and legitimacy over a totalitarian dictatorship. And the vast majority of German bureaucrats kept on following orders, no matter who gave them, a phenomenon not unique to the Weimar Republic.

Amid the disasters of defeat and occupation, Germans came to believe in the 1940s that a more thoroughgoing change in constitutional and political culture was needed for Germany to be reborn.

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Conventionally, the Weimar Constitution has been remembered for its flaws, the 1949 Basic Law for correcting those flaws and reunification for the triumph of that Basic Law which formed the basis for a new, democratic, united Germany. Perhaps a better way to understand these three turning points is to broaden the frame from constitutional history to the longer-running process of German unification.

In this broader view, we can analyze a halting, problematic process which begins with Napoleon’s destruction of the Holy Roman Empire and moves through the 19th century dynastic power struggles, Bismarck, Weimar Germany, the Third Reich and the cold war division of Germany to culminate after 1990, for the first time, in a democratic and federal German nation-state peacefully cooperating with, rather than worrying and threatening, its European neighbors.

The constitutional strand of this broader history is itself rich in paradox. Drafters of 1949 Basic Law were less sovereign actors than their 1919 Weimar forebears, yet produced a constitution that enjoyed a much more broadly-based (West) German consensus. Through the traumas of defeat and occupation, a vital new democracy was born. Couldn’t the same be said in slightly different ways, of France and Italy?

David C. Unger is a journalist and former foreign affairs editorial writer for The New York Times (1977-2013) and adjunct professor of American foreign policy at SAIS Europe.

Faculty/Experts, German Constitutionalism

The Past Shapes the Future: The German Constitution at 70

Germany is celebrating three important events this year: The 100th anniversary of the Weimar Constitution, 70th anniversary of its Basic Law and 30th anniversary of the fall of the Berlin Wall. To commemorate these occasions, the Center for Constitutional Studies and Democratic Development (CCSDD) in Bologna and The SAIS Observer are partnering for a series on the future of German constitutionalism. This article is the first of eight.

By Stephen F. Szabo

The Federal Republic of Germany celebrates its 70th  birthday this year. Much has changed since 1949. Today, the FRG encompasses all of Germany and not just the West, as it did at its founding. No longer the eastern border of the West, the FRG is now at the center not only between east and west but between north and south. Furthermore, it is once again Europe’s largest power both in terms of population and economics, although not so large as to be a hegemon. What remains unchanged, however, is that it still lives under the constitution of 1949. What are the implications of this constitution for contemporary Germany?

The Grundgesetz was written by Germans who did not trust their country. The founders, with the assistance of American authorities and German emigrés, created a constitution which was not even called a constitution but a Basic Law (Grundgesetz), as it was meant to be temporary until the country was reunified and an all-German constitution could be written. It was written with both the Weimar and Hitler experiences seared into German memory. Both the failure of democracy in Weimar and the mass support for Adolf Hitler meant that the framers believed that the German public could not be trusted to be democrats and had to be restrained within a democratic context. Consequently, a number of “never agains” were built into the constitution which was not a constitution.  

The Basic Law contains a ban on anti-democratic parties and speech both to prevent a return of an extreme right nationalist party like the National Socialist German Workers’ Party (NSDAP), as well as to prevent the Communists from taking power. The Communist Party (KPD) was banned in 1956 by the Constitutional Court and only reemerged under a different name in 1968. Strict laws on hate speech including those pertaining to social media are a current manifestation of this concern. The numerous checks and balances built into the political system including a vigorous federal system of strong state governments, a Constitutional Court, the limits on a federal police force to prevent a new Secret State Police (Gestapo) and a liberal asylum clause all stem from this aim. The restrictions on militarism and the military was another goal, and the Grundgesetz limits the autonomy of the German military and its missions by requiring it to operate in a multinational coalition and expressly for territorial defense. The Bundestag must approve any deployments of German forces and the Chancellor is not even granted the power as commander-in-chief.

In addition to the bans on extreme parties and speech, the electoral law passed after the constitution includes a 5 percent clause which limits the number of parties in the federal parliament with the hope of avoiding the ineffective multiparty system of Weimar. The office of the President, which was held by Paul von Hindenburg in Weimar and led to Hitler being appointed Chancellor, was downgraded to a figurehead role. The Constructive vote of No Confidence (which requires a parliamentary majority not only to remove the Chancellor but also to elect his or her replacement) was designed to maximize executive continuity and prevent revolving door governments. The limited use of referenda, which had the misuse of referenda in Weimar in mind, limits direct democracy and has spared Germany from a Brexit type quagmire.  

In addition to the legacies of Weimar and the Third Reich, the reunification of the country in 1990 has been influenced by the Constitution. When Germany was able to get the agreement of the Allied Powers to reunify under the Treaty which followed the Two Plus Four negotiations, Germany had two ways to constitutionally unify. It chose the Article 23 accession route, which simply extended the constitution to the eastern states of Germany rather than the Article 146 route, which would have called for a new all-German constitution. By doing so, the Grundgesetz remained in force. This has had a number of consequences, most notably the lack of a feeling of agency in the former East Germany (GDR) and the failure to consolidate the Länder (states). This left 16 state governments in a country the size of Tennessee and Oregon combined. The Final Treaty also banned German production and possession of atomic, biological or chemical weapons and limited the size of the Bundeswehr.

A constitutional success story with limits

There is no doubt that the Grundgesetz has been a very stable and successful constitution. It has avoided the excessive personalization of power found in presidential systems and has promoted consensus-oriented, centrist coalition governments. Its federalism has both reflected and strengthened a polycentric society which has avoided the centralization of power and wealth in the capital, thus limiting the sort of populist backlash evident in more centralized countries like the U.K. and France. The requirement of the wealthier states to make transfer payments to the poorer ones, based on a concept of solidarity, has also limited the number of economic and political losers. To live in Munich, Leipzig or Hamburg, for example, is quite different than to be in Lyon or Manchester. The concept of an armed democracy, which proactively combats extremism, has allowed Germany to better defend itself against extremist speech and groups, as well as against the abuses of privacy by American social media companies.

All successes contain the seeds of demise and Germany is no exception. The consensus-oriented centrist politics of coalition governments has limited the role of opposition, and of the Bundestag. Grand coalition governments, as is also the case in Austria, have opened the door to the extremes which argue that there is an elite consensus which prevents real change. Despite the five percent clause, the voting system set up by the electoral law is essentially one proportional representation which has ensured a multiparty system. As a result, Germany now has a six-party system which includes a far-right extremist party as the largest opposition faction in the Bundestag. The fact that much of the former GDR, despite receiving close to $1.5 trillion in funding since unification, has been left behind, has opened the door for the rise of the Alternative für Deutschland (AfD) and other extremist groups.

The anti-militarism of the past has not only produced a culture of strategic restraint but a Swiss style parochial mentality which avoids taking responsibility and providing larger public goods. Rather than restraint, there is a tendency for free riding in post-unification Germany. The need for parliamentary approval of all military action and the limits on the Chancellor in this field have hindered Germany’s role as an alliance partner and provider of security beyond its borders. The fear of a Gestapo and the decentralization of the security services have hindered Germany’s ability to counter terrorism and extremist groups at home.

These are, however, largely problems of political leadership rather than of a constitution, which in comparison to others in the West, still looks to be a model.

Dr. Stephen F. Szabo is currently a Senior Fellow at the American Institute for Contemporary German Studies and Adjunct Lecturer in European Studies at Johns Hopkins SAIS.