Category: German Constitutionalism

Friday for Futures: Has Germany abandoned its constitutional responsibility towards future generations?

Nina Hall, Assistant Professor of International Relations, Johns Hopkins SAIS (Europe)

Friday for Future Students protest in Berlin, 08.02.2019. Credit: *https://www.tagesspiegel.de/berlin/berlin-mitte-klima-demo-wie-viele-kommen-in-den-ferien/23964646.html*

Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

Article 20a, Protection of the natural foundations of life and animals, German Basic Law

BOLOGNA, Italy — The German Basic Law — the country’s constitution — obliges the state to protect the environment for future generations. Article 20a, cited above, was added to the Basic Law in 1994, after a long campaign by die Grünen (the Green party). Germany also stands out internationally for its strong rhetoric on climate action. In 2018, Chancellor Angela Merkel, for instance, emphasized that “climate action is a matter of both ecological necessity and economic rationality.”

Yet, Germany is missing many greenhouse gas emissions targets. In 2002, the German government agreed that their emissions would drop 40% by 2020 from 1990 levels, but now it appears they will only reach a 32% reduction. Furthermore, the coalition government has been reluctant to discontinue its support for the coal industry. Only in the past few months has the government announced they would put an end to the “brown coal” (lignite) industry by 2038, but it has yet to put this decision before the Bundestag. In the meantime, Germany burns more lignite than any other country, and approximately a quarter of its electricity comes from it. German politicians are also very cozy with the car industry; many have sat, or sit, on the board of Volkswagen and have pushed for weaker European Union emission standards for cars, despite the scandal over cheating on emissions testing. In short, the German government is not meeting its obligations to protect the environment in the context of a warming climate.

The gap between politician’s rhetoric and actions has not remained unnoticed. Students are now standing up in protest at German inaction over climate change. They are part of the worldwide FridaysforFuture movement inspired by lone 16-year-old Greta Thunberg, who, in August 2018, began a daily solo strike outside the Swedish parliament. Students in Germany also saw political delay, and realized they could not rely on the generation currently holding power to take bold action on climate change. They were particularly frustrated that the German government was not serious about changing their economic policies to stay within planetary boundaries and meet the Paris agreement, which aims at keeping global average temperatures below two degrees. Although the students have not made Article 20a a central platform of their campaign, these students are emerging as a strong political force and demanding that the Federal Republic of Germany protects the environment for future generations. This message is gaining support, reflected in the record success of the German Green party in the European elections (they took 20.5% of the vote, beating the German Social Democratic Party).

The FridaysforFuture movement is an impressive example of a globally-coordinated protest, based on horizontal networks. Students are organizing through Instagram, Whatsapp messenger, Facebook and a basic website (which lists many, but not all the protests). They are actively supported by existing environmental groups, and some of the student leaders have received professional training from them. Luisa Neubauer, one of the leaders of the German student climate movement, has previously been very active in 350.org, and was a student ambassador for One, a UK-based development organization. However, it’s important to note traditional NGOs are not directing the student movement, but rather seeking to help train, and empower youth to tackle climate change. Campact, an NGO in Germany well-known for organizing mass demonstrations, is offering students training this summer.

In Germany, the protests started gaining force in late 2018 and early 2019. They drew impressively large crowds on March 15, 2019, with rallies all across Germany, alongside others around the world. There were protests in 150 German cities — including all the major cities from Berlin to Bonn, Frankfurt am Main to Hamburg, as well as many smaller cities and towns (the full list is here). In Berlin alone between 20,000 to 25,000 people attended the protest, and around 300,000 in all of Germany. There have, of course, been other large climate demonstrations in Germany. In 2015, in the lead-up to the Paris climate summit, between 10,000 and 17,000 people demonstrated on the streets of Berlin. Around 25,000 protested in Bonn, in November 2017, when the city hosted the United Nations Framework Convention on Climate Change negotiations. Germany has had even larger demonstrations in recent years: demonstrations against the Transatlantic Trade and Intellectual Property Agreement in October 2015 drew 250,000 people to march in Berlin, and the anti-nuclear movement has mobilized thousands periodically since the 1970s.

The FridaysforFuture protests not only draw large crowds but are sustained protests on a weekly basis and led by the younger generations. The regularity of their Friday protests has enabled the students to gain media attention and emerge as a political force. On April 8, 2019, several student representatives held a press conference at Berlin’s Museum of Natural History. They demanded that the German government set a carbon tax, and phase out coal-based energy by 2030. They want politicians to take action this year and shut down every fourth coal power plant. The students have been backed by academics and scientists. In March 2018 a group of German scientists wrote letters to endorse their call for strong climate mitigation and this was followed by an international letter for support from international academics and scientists (disclosure: I signed this second letter).

Many decision-makers have officially endorsed the protests and complimented students for engaging in politics. Merkel has expressed her support for school students going on the streets to fight for climate change. Politicians are often eager to see students engaging in politics, but rarely had to answer directly to these younger generations’ demands. After all most of these students can’t yet vote, so it’s easy for politicians to instrumentalize their needs when it suits them but not follow-through with action. This is what we’ve seen recently, with Annegret Kramp-Karrenbauer, the Christian Democratic Union leader, announcing she will not support a carbon tax, a decision strongly criticized by Luisa Neubauer on Twitter.

And there has been a backlash against the FridaysforFuture movement. Some see it as opportunistic way for students to get out of school. Germany has very strict laws on attendance, and weekly participation in organized demonstrations violates these rules. The liberal party’s leader, Christian Linder, was extremely dismissive of the protests, claiming that climate politics was only something “experts” should engage in, not students. He had to nuance these comments later after much public criticism.

So, what do the FridaysforFuture protests mean for the German constitution? Firstly, they have the potential to serve as a valuable reminder of the objective outlined in Article 20a. If Germany were to take its constitution and the rights of its future generations seriously, politicians would rapidly shift the economy away from fossil fuels, and towards renewable energies. They would stop building roads designed only for cars and support better public transport and bike infrastructure. They would listen to younger generations, and climate experts now, rather than carrying on with business as usual.

Secondly, FridaysforFuture could appeal to the courts to further detail the implications of Article 20a. After all, Article 20a was added as a Staatsziele rather than a Grundrecht (basic right), much to the dismay of the Green Party. This is an important distinction as Staatsziele are not actionable, whereas Grundrechte are. Staatsziele guide policy-making by providing the legislative, the executive and the judiciary with a list of state priorities. It is unclear to what extent Staatsziele have to be implemented or taken account of in legislation and judicial decisions, and their lack of precision often leaves ample room for interpretation.

Finally, in the long-term, if the protests continue, they could restart the debate on whether environmental protection should be seen as a Grundrecht (basic right), as first proposed by the Green Party in the 1970s. This would mean German politicians would be obliged to tackle climate change.

Blog Post for German Constitutionalism Series: The Past Shapes the Future, The SAIS Observer. https://saisobserver.org/category/series/german-constitutionalism/

[1]The author would like to acknowledge the research assistance, and constructive feedback of the two editors, Miriam Siemes and Jonas Präfke, which contributed significantly to this article.

GBU, German Constitutionalism April 23, 2019May 1, 2019

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.

*****

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.

*****

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 April 5, 2019May 1, 2019

The Past Shapes the Future: The German Constitution at 70

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.