By Simon Blumenstock.
Modern-day Germany is – for good reasons – not a country known for celebrations of its own successes. In major public perception, anything resembling patriotism evokes memories of the crowds following Adolf Hitler in the horrible so-called Drittes Reich (1933-1945) – some with blinded, most with open eyes. An assumed “ban of patriotism” is one cause for the conflict constantly growing within German society, with left- and right-wing parties and citizens hardly finding common ground anymore. However, the 23rd of May 2019 was one of the rare occasions on which literally every German party and their supporters did agree upon a cause to celebrate German history. That date in 1949, thus 70 years earlier, the Grundgesetz (“basic law”), modern Germany’s constitution, had been proclaimed, coming into effect with the start of the following day.
It is safe to assume that not even the seventy-three men and four women drafting the Grundgesetz would have anticipated this kind of national praise.
France, the UK and the US had encouraged and supported the efforts of drafting a single constitution for the three Western Allied Occupation Zones. The parliaments in the eleven provincial states elected members into the Parlamentarischer Rat (parliamentary council), which started its work on 1st September 1948. The law was meant to be a transitional solution only, until the whole German people, including the Germans in the Soviet Zone and the Saarland, could be involved in the process. The Grundgesetz came into effect after the draft was accepted by the three Allied States and the state parliaments in the Western Zones. The prospect of reunification was laid down in the preamble, and it is also the reason why the Grundgesetz was not named a constitution. However, it was another forty-one years until Germany became one country again in October 1990. By that time, the Grundgesetz had proved reliable, so that Eastern Germany legally just joined its jurisdiction, with no one seriously doubting its rank as a valid constitution anymore.
Today’s acclaim from all parts of society speaks volumes of what a modern constitution can accomplish. Naturally, the “fathers and mothers” of the Grundgesetz had been able to dodge some of the problems that hundreds-years-old, well established constitutions pose in modern days. They could take into account centuries of global experiences with basic sets of law, above all within German history. “Learning from past mistakes” could be an underlying theme of the Grundgesetz.
At first glance, it is a rather short law, ranging only from Article 1 to Article 146. The first nineteen Articles describe the Grundrechte, the people’s basic legal rights. The following part mainly constitutes the relationship between federal and state-level powers. The role and tasks of the different national institutions of power are described thereafter, with a particular chapter dealing with the drafting of laws. The remaining Articles outline principles related to the judiciary, taxation and, since 1968, the case of national defense. The impression of the German past and other nations’ experiences with their constitutions is probably most obvious in the sections about Grundrechte and the rules on the separation of powers.
The Grundrechte: It’s All about Dignity
The first Article is meant to be the most essential one; the law that defines the principle of utmost importance for the nation. No further explanation needed on why post-war Germany chose the following
Artikel 1 (1): Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.
Article 1 (1): Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
This Article is one of only two that by no means can be deleted out of the constitution, not even with the usual two-thirds majority in Bundestag and Bundesrat, as stated in Art. 79. Its superior role can also be seen when compared to other Grundrechte. Article 2, for example, contains various basic legal rights, including the right of every person to do whatever they like (the rather convoluted way in which this is described – “Every person shall have the right to free development of his personality“ – is simply a product of the concern that a sentence like “Everybody may do as they please“ would not befit a constitution, let alone one of its first Articles). Note how the right is not restricted to German citizens, but protects everybody who may be subject to the authorities. Only some of the Grundrechte speak explicitly of Germans, for example the right of freedom of occupation (Art. 12 (1)). However, as a result of Germany’s membership in the European Union and the treaties’ principle of equal treatment, even those Grundrechte may today be evoked by every EU citizen.
Naturally, Grundrechte are infringed on a regular basis. The basic legal right may be abridged, if there is a sufficient justification for it. Each Grundrecht poses different formal and nonformal requirements to such an abridgement. The aforementioned right of freedom to act may be restricted by a simple law following any purpose, whereas the freedom of assembly inside buildings (Art. 8 (1)) may be only restricted by a law that has the purpose of protecting a high-ranked constitutional legal right, e.g. the right to live. Every abridging law has to carefully weigh its purpose against the violated right. If the importance of the infringed right outweighs the law’s purpose, the law is unconstitutional and considered invalid. The same goes for the concrete act that is based upon a law, for example the police unjustly dissolving an assembly on grounds of an, in general, constitutional law. An important exception to this rule is, again, Art. 1 (1): A person’s dignity may never be infringed on whatever ground – no justification is valid.
As Art. 93 (1) no. 4a) states, every person may claim a violation of their Grundrechte at the Bundesverfassungsgericht, the German federal constitutional court in Karlsruhe. Until 31st December 2018, 226,804 such claims have been handled by the court, although only 2.3% were ruled in favor of the claimant. Still, surveys regularly honor it as the most-respected institution by the public.
The Separation of Powers: To Lead or Not to Lead
It is a common misunderstanding that Adolf Hitler became the Führer as a result of a violent revolution. As a matter of fact, he was proclaimed chancellor by the president Hindenburg in an, at that time, constitutional manner. It was by a parliamentary overruling of the constitution after the following reelections that Hitler succeeded in completely disempowering the parliament and the president. The prevention of events like this was, of course, one of the leading thoughts while drafting the Grundgesetz. How to construct a nation with a strong government that at the same time has the least power possible? Interestingly enough, the basic structure is still oriented towards the earlier constitutions.
The executive power is exerted by the government, whose head is the chancellor (as of now, Ms. Angela Merkel – for fourteen years and counting. ). The chancellor is elected by the parliament, the Bundestag, which shares the legislative power with the Bundesrat, an institution hosting representatives of the sixteen German states. The Bundesverfassungsgericht and all courts represent the judiciary power. The official head of state, however, is the Bundespräsident (president), currently in the person of Frank-Walter Steinmeier. The president is not directly elected by the people, but by an institution consisting of members of the parliament and state representatives (Art. 54). The fact that the president acts as the leading person of Germany, but that most readers will only have heard of Angela Merkel, is one result of a difficult balancing act. Article 82 has the president sign every law to come into effect, underlining his high status. The president’s duties also include official representation. But most of all he is supposed to stand above the three powers, trying to find compromises and ensure that the nation as a whole is not divided. Steinmeier showed that he was up for this task when he invited each party leader to a one-on-one talk after the 2017 elections, in effect enabling a previously doomed government formation. However, to prevent too strong leadership, there is also Article 58: Every legally relevant act requires the chancellor’s prior permission. The chancellor, at the same time, is heavily dependent on the parliament’s general approval, thus preventing solo-actions on her side. So, in the end there is no strong leader, but many strong control mechanisms.
So far, this balancing act has proved to work, as has the Grundgesetz on the whole. On a greater scale, it tells the story of how a literally destroyed nation can find its way back into the civilized global community within just a few years – with the economic support and, above all, the trust of the powerful international players. An encouraging example we might need just now, at the end of the year 2019.
Born in historically infamous Nuremberg, Germany, Simon Blumenstock has graduated in Law at the Humboldt University in Berlin. He has been working in law firms since 2016, predominantly in the fields of Criminal Law, Family Law and Intellectual Property Law. In 2019, he volunteered in the Cambodian branch of the NGO “International Bridges to Justice” in Phnom Penh to support local legal aid defenders. He will start his obligatory practical training at Berlin High Court in 2020. Apart from Law, he is interested in budget traveling, hiking and theology.
 Official Statistics of the Bundesverfassungsgericht: Jahresstatistik 2018 – Verfahrenszahlen seit 1951 (Karlsruhe, 2019), https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresstatistiken/2018/gb2018/A-I-1.pdf?__blob=publicationFile&v=2