75 years of the Constitution of the Federal Republic: Chatty or thorough?

75 years of the Basic Law – reason to sing the praises of a successful constitution?

Yes absolutely. It is the most successful German constitution ever. Without doubt. And in international comparison, it is probably the most powerful constitution, due to the case law of the Federal Constitutional Court.

But many citizens have negative memories not only of the emergency laws of the 1970s, but also of the dismantling of the basic right to asylum in 1992, the enabling of a “major eavesdropping attack” in 1998 and, and, and…

Yes that is correct. There has been a hard fight over the basic right to asylum; in other constitutions it does not exist at all. The emergency legislation to combat terrorism is also much more rigid in other countries, allows for quicker reactions, but is not constitutionally limited.

Does the Basic Law guarantee a robust democracy and does it adequately arm us against right-wing dangers?

Not immediately. In my opinion, the effect of the Basic Law is limited. I think Democrats need to defend democracy. I doubt that banning parties is the solution in a profound social crisis, whether regarding the NPD or AfD. I’m rather skeptical about that.

Otherwise, how can one ward off attacks on democracy?

There needs to be a much stronger discussion of the content within society as a whole.

Interview

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Rosemarie Will, 1989 to 2014 professor of public law at the Humboldt University in Berlin, was involved in an advisory capacity on the draft constitution of the Central Round Table of the GDR and was a constitutional judge in Brandenburg for ten years. She is the author and co-editor of the annual Fundamental Rights Report and the “Blätter für deutsche und internationalpolitik”.

You were born in 49 – like the Basic Law! In your opinion, what are its most important articles?

The fundamental rights, including those that support open democratic discourse, freedom of expression, freedom of the press, freedom of assembly. Communication must work so that the constitutional order remains stable.

In recent years there have been calls for additional rights to be included in the Basic Law. As an example: animal protection is codified but not enforceable. Then what’s the use?

Fundamental rights must be subjective. By the way, this is also an experience from the GDR. This means that they must be individually enforceable and that ultimately means enforceable. The fundamental rights, as they are classically formulated, are individual rights and are highly enforceable. Every citizen can invoke fundamental rights in every administration and before every court. And if this is not followed, he or she can file a constitutional complaint.

In recent years it has been recognized that animal protection regulations must also be enforceable and can be demanded before the Constitutional Court. This happened with the climate decision of the Federal Constitutional Court in 2021. What an outcry there was when Karlsruhe, to the great astonishment of many, declared climate complaints to be justified. What I want to say is that case law certainly opens up ways to enforce certain rights that have not yet been precisely formulated. This has happened with our national environmental protection and recently also by the European Court of Justice.

Why have children’s rights still not been included in the Basic Law?

I’m very much for it. We wrote these into the draft constitution from the Central Round Table. And they were also put forward for the constitutional reform in 1994, but were rejected by the joint commission of the Bundestag and Bundesrat.

There is an initiative that would like to have the right to culture guaranteed for everyone in the Basic Law. How do you feel about this? This would certainly require greater government subsidies.

I’m unsure about that. More cultural enjoyment for everyone is nice. But how can you sue for a subsidy claim for youth clubs or film funding, for example? That might be difficult.

The freedom of art is codified. Is it sometimes overused by some, as was the case in the debate about the last Documenta?

No. You have to endure that. Questioning artistic freedom because you don’t like some political content is not possible. If you are of the opinion that a certain artistic expression is racist, you can fall back on the Basic Law, argue or act based on the constitution. That wouldn’t be a problem at all.

How much goes into a constitution? Isn’t the Federal Republic’s moral and legal code soon to be bursting at the seams? Moses was satisfied with ten commandments.

There are not that many or even too many fundamental rights articles in the Basic Law. After more than 70 years, the jurisprudence of the Constitutional Court has of course specified many articles in great detail – in a way that is not the case worldwide. Whether the Basic Law is chatty or not and assumes things that the legislature should actually do is another matter. With regard to federalism, there are provisions written into the Basic Law that actually belong in legislation. This also applies to the fundamental rights part, for example regarding apartment searches or questions of asylum law.

Why was that done?

Basically because people didn’t always trust the legislature.

The Parliament?!

Not a simple majority. Everything that has been written into the constitution, for example the debt brake, ties up the legislature. To change the constitution, he needs more than a simple majority.

The Basic Law is characterized by distrust of the people? Democracy itself finds the constitution of a democracy highly suspect?

No, if you actually want to rely on the legislature protecting fundamental rights and changing majorities adhering to them, you need a constitution that guarantees this. Constitutional principles must not be constantly changed by simple majorities. This is how the rights of the minority are secured. Drafting a constitution is always something that is fundamentally politically desired, and it depends on more than just a simple political majority.

You participated in an advisory capacity on the Round Table’s draft constitution. Why hasn’t any of this been incorporated into the Basic Law?

The constitution of the Round Table for a reformed GDR was created in the short period from December ’89 to April ’90. The SED rule had fallen, the border was open and the question of German unity was being discussed: Should unification be carried out via Article 23, i.e. accession, or 146 with a new all-German constitution? A new GDR constitution would have bound the new legislature, the People’s Chamber, which was freely elected on March 18th. She should have taken this into account during the negotiations on the state treaty. The majority of MPs rejected this.

As a reminder: The Alliance for Germany had led the election campaign for Article 23 of the Basic Law, old version, and any constitutional reconstitution was disruptive; the FDP went along. The SPD was divided, the Greens, partners of the East German Alliance 90, did not push for German unity. The PDS had no West German partner. The Modrow government, or then the government of national responsibility, advocated a longer path to German unity, which the majority of East Germans did not want.

In the given party-political constellation, the Round Table’s draft constitution had no chance. The People’s Chamber and the GDR’s first freely elected government were ultimately inferior to the negotiating power of the West.

What were the advantages of the Round Table’s draft constitution?

The Round Table’s draft constitution went further with the protection of the family beyond traditional marriage, abortion and environmental protection as a basic law, but also – due to the Stasi experience – with regard to data protection. In 1994, a new approach was attempted with the Constitutional Commission of the Bundestag and Bundesrat, but it was doomed to failure because it was not wanted.

Which path to the unification would you have found better?

About Article 146. We would certainly not have been able to implement all of our constitutional ideas even then, but the East would have contributed to the design of a new constitutional order. There was no majority in the West in favor of changing anything in the Basic Law; people were surprised by the East German revolution and perhaps also by the East Germans’ demands for German reunification.

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