75 years of the Basic Law: The eternal provisional

75 years ago, on May 23, 1949, the Basic Law, the provisional constitution of the Federal Republic, was passed. Sabine Böhne-Di Leo, professor of journalism and politics at Ansbach University, takes this anniversary as an opportunity to trace the history of the creation of the Basic Law. The fact that the author is not a lawyer, but a high-profile journalist, is a formal advantage for the book. It is written in an exciting and understandable way for the constitutional layperson. Key protagonists such as Elisabeth Selbert, Carlo Schmid and Konrad Adenauer are given a human face. In terms of content, however, the publication does not provide anything new; in fact, it often sticks to the surface.

The “invention of the Federal Republic” begins with the directive from the occupying powers of the three western zones to the western zone prime ministers on July 1, 1948, to convene a Constituent Assembly. It ends with the approval of the Western allies and the ratification of the Basic Law by the state parliaments – instead of a referendum. The reader learns why the constitution was only a provisional and was therefore called the Basic Law, why the prime ministers shied away from a referendum and why a parliamentary council was commissioned to draft the constitution instead of a constituent assembly. The Parliamentary Council, which included 65 representatives from the West German state parliaments – including only four women – began its work on September 1, 1948. The basis for the discussions was the draft of a basic law formulated by ministry officials and experts at a convention in Herrenchiemsee.

The work on the constitution is virtually framed by the very emotional, even heroic description of the Berlin Airlift in this book. Other facets of the Cold War, such as the currency reform carried out in the western occupied zones on July 20, 1948, which preceded the blockade of Berlin by the Soviet Union, are only briefly touched upon. However, the currency reform as well as the reintegration of the old elites and nominal and active Nazis, which was already well advanced at the end of 1948, promoted the reorganization of capitalism in the West. In this respect, there can be no question of an “invention” by the Federal Republic. The creation of a western zone state was a process that had been prepared for a long time and was particularly pushed by the USA. On the other hand, the role of the Soviets and their occupied zone, which, in the author’s opinion, was on the way to becoming an unjust state, is little differentiated.

With regard to the constitutional questions discussed in the Parliamentary Council, the author highlights some of the most important: Elisabeth Selbert’s commitment to equal rights for men and women, the controversy over the abolition of the death penalty and the federalist structure of the Federal Republic. It is also noted that the constitution leaves the economic structure of the future state open and that socialization is even possible via Article 15.

What is not discussed is that the state constitutions enacted at the end of 1946 and beginning of 1947 went even further on the question of socialization of private capitalist property. This was based on the cross-party recognition that the path to fascist dictatorship was only possible through the late capitalist structure of the economy and through the alliance between the management of large parts of the economy and the NSDAP. Although the balance of power had now shifted, Article 15 and the formula of the democratic and social constitutional state (Articles 20, 28) must be interpreted in continuity with the state constitutions. The regulations should offer the opportunity to place the social and economic structure of the Federal Republic at the discretion of the democratic decision of the people. In the mid-1950s, as a result of the bourgeois restoration, the formula was reinterpreted as a welfare state. Constitutional questions are also questions of power. But the recent activation of Article 15 to help the human right to housing to achieve a breakthrough in Berlin through the socialization of large real estate companies shows that constitutional questions are also legal questions. A field that needs to be occupied much more strongly by the social left!

The author also builds a bridge to the present in some places. For example, she refers to the amputation of the right to asylum in 1993 due to xenophobic attacks. However, she does not address other current hot topics, such as the question of whether the peace requirement as a state goal also requires a ban on arms deliveries.

The Basic Law is provisional, as its period of validity should be limited until the day on which a constitution that has been freely decided by the German people comes into force (Art. 146 aF). This situation arose in 1990 with the impending unification of the GDR and the Federal Republic of Germany. But the rulers did not engage in a constitutional discussion based on the Basic Law and the draft constitution of the Round Table of the GDR. This meant that the opportunity was missed to discuss gaps in the Basic Law, for example the disproportion of political and social human rights, the right of women to self-determined pregnancy or the expansion of plebiscitary forms of state decision-making. At the same time, the integrative effect of a constitutional debate was deliberately rejected. A circumstance that contributed to the fact that there could be no talk of a unification of the two German states on equal terms. The West and West German capital interests dictated the terms of the liquidation of the GDR. An economic, scientific, cultural and legal process of imposition took place – often in breach of the Basic Law. All areas of East German life were devalued. These experiences are still partly processed in the East today in a regressive, nationalistic way, through right-wing populist projections. But unfortunately it is not the author’s job to problematize this.

Sabine Böhne-Di Leo: The invention of the Federal Republic. How our constitution came about. Kiepenheuer & Witsch, 217 pages, hardcover, €23.