75 years of the Basic Law: Who protects whom?

No connection under this number” and the number 23 behind it could be read on posters and banners in the spring/summer of 1990 and heard at rallies from Rostock to Suhl. And yet, on October 3rd of that year, the GDR “joined” the Federal Republic in accordance with this very paragraph of the Basic Law. This is what almost 90 percent of West Germans want, but also over 80 percent of East Germans, as Astrid Lorenz from Leipzig University said.

On the occasion of the 75th anniversary of the Basic Law (GG), the Federal Foundation for Coming to terms with the SED Dictatorship invited people to a debate: “In good shape?”

Martin Sabrow, long-time director of the Center for Contemporary Historical Research Potsdam, kicked off the event. The history professor was responsible for historical excursus and comparison. The Basic Law is seen as a clever response to the weakness of the Weimar Imperial Constitution, for example with the introduction of the five percent clause, the breaking of the omnipotence of the head of state and the suppression of plebiscitary elements (although the referendum against the prince’s severance payment in 1926 and the referendum against the construction of the armored cruiser two years later were certainly not responsible for the end of the first German democracy). Sabrow also cited the right of resistance enshrined in the Basic Law and the installation of a Federal Constitutional Court, which would have a greater role than the State Court of the Weimar Republic, as lessons from German history.

The Basic Law was still not a counter-model to the Weimar Constitution, which also recognized popular sovereignty and a welfare state, but it perfected them. One could speak of a “structural homogeneity,” stated the history professor, who felt it was important to emphasize: “Weimar did not fail, but was destroyed, and not by anonymous powers.”

The birth of the Basic Law was inspired by the Western occupying powers, who recognized the serious competition from the People’s Congress movement for an all-German constitution that had been initiated in the Soviet occupation zone at the time. The majority of the West German population showed little interest in the work of the Parliamentary Council in 1948/49 and was preoccupied with existential concerns. Sabrow praised the extension of basic rights protection in the Basic Law to future generations.

The lawyer Christoph Möllers sees this eternity clause in Article 79 as being in virtual contradiction to Article 146, according to which the Basic Law loses its validity on the day “on which a constitution comes into force that has been freely decided by the German people.” . The chair of public law at the Humboldt University in Berlin spoke of a “paradox”. And asked questions: Is the Basic Law threatened? Does it protect citizens or must citizens protect it? What does defensive democracy mean? Why are 75 years of the Basic Law being celebrated and not 75 years of the founding of the Federal Republic?

The constitution is intended to protect citizens from political attacks, but is a document that was written by politicians to enable politics to realize itself. With regard to the Office for the Protection of the Constitution, “which is not the same as the Stasi, but also has a long history of snooping,” the impression of overreach arises. Möllers then surprised people with the remark: “To put it in Marxist terms: We have a base-superstructure problem here.” The constitutional lawyer pointed out that there have now been 70 changes in the Basic Law and added that, according to an empirical study, constitutions only last an average of 19 years get old and are generally not “as fragmented” as those in the Federal Republic. In order not to be misunderstood, he also asserted: “I like the Basic Law, it’s a great constitution.”

Astrid Lorenz from the would have been great Alma mater lipsiensis would be found if East German experiences had been incorporated into the constitution of the Federal Republic. She recalled the draft constitution of the Central Round Table in the last year of the GDR, which was supported “from below”, largely by the civil rights movement, and gave greater importance to plebiscitary elements and parliament than to the government. But this was not wanted, not by the last People’s Chamber, not by West German politicians. At the time, Wolfgang Schäuble claimed that a people of 16 million could not have the same voice as 60 million: “I ask you, ladies and gentlemen…”

According to Astrid Lorenz, only the Brandenburg state constitution has absorbed the spirit of ’89 and codified lessons from the GDR. It would go far beyond the Basic Law with human dignity even when dying, a ban on scientific experiments on people, the recognition of the need for protection of non-marital relationships, the right of environmental associations to have a say and the right to work and housing.

Astrid Lorenz notes a discrepancy between celebratory mood and skepticism in the attitude of Germans today towards the Basic Law. The political scientist considers the drafting of a new constitution to be problematic in today’s politically fragile situation due to right-wing populist and right-wing radical challenges.

An intervention from the audience was also interesting. Pastor and SDP founding member Konrad Elmer-Herzig, a member of the joint constitutional commission of the Bundestag and Bundesrat in the early 1990s, expressed his disappointment that their work had been shamefully disregarded and his recommendation to enrich Article 2 of the Basic Law with the formula “Everyone is called for humanity and community spirit, but was not well received. He then quoted the Bonn criminal lawyer Josef Isensee, who said at the time: “We got away with it again with a black eye.”