Seventy-five Years of the Basic Law: “The Basic Law is the ground from which freedom and prosperity have grown in the Federal Republic”
Freiburg, May 14, 2024
Prof. Dr. Andreas Voßkuhle. Photo: Klaus Polkowski
Professor Voßkuhle, a constitution for the Federal Republic was drafted back in 1948 at Herrenchiemsee Palace by a group established by the Allies. This was the foundation for the Basic Law which was passed in 1949. What were the primary motives of the authors of the Basic Law at that time?
The Federal Republic of Germany began out of nothing. Nazism had destroyed any moral substance with the Holocaust. Now they had to start again from the beginning, and they did this with a concept which is represented even better in the first draft of the Herrenchiemsee convention than in the Basic Law. It begins with the sentence: “The State is there for the sake of humans, not humans for the sake of the State.” So the authors of the Basic Law wanted to place individual humans at the heart of the Constitution. Therefore the Basic Law begins with the fundamental rights, and puts human dignity at the start. And therefore the concept of the self-determined human, whom we should respect and protect, dominates jurisdiction to date.
What parts of the Basic Law are negotiable and which are set in stone?
There is one entrenched clause (Ewigkeitsklausel) in the Basic Law, and that is Article 79 paragraph 3. There it states that two articles should be enduring: firstly, Article 1, safeguarding human dignity. And secondly Article 20, which laid down the fundamental principles of our Federal Republic: the principles of democracy, federalism[AHON1] , the welfare state, rule of law. In certain ways, these two articles describe the identity of our Constitution.
The Basic Law was originally conceived as a provisional measure. Even today, Article 146 still retains the option that it “shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.” How has the Basic Law managed to become permanently established?
That’s right, initially the Basic Law only applied to the West zone, so its authors didn’t call it a ‘constitution’. On reunification there might have been an option to create a new constitution in a joint convention. However, in the end it was decided on a solution whereby the new Federal States adopted the Basic Law. Some people regretted this, including me personally. Such a moment of jointly establishing a constitution could have symbolically reinforced the reunification.
Now however I don’t see any reason to consider a new constitution. The Basic Law is the ground from which freedom and prosperity have grown in the Federal Republic. In certain ways, we’re a model state, as regards our constitutional culture. And constitutional patriotism among members of the public remains high: over 80 percent express confidence in the Federal Constitutional Court in recent surveys, and this is well above the approval rating of other constitutional bodies.
Nevertheless the Basic Law has changed repeatedly.
That’s true, compared to other constitutions such as the Japanese or the USA, the Basic Law has changed a lot with well over 60 amending acts. It has to be said that not all these changes have improved the Basic Law. For instance, the amended fundamental right of asylum in Article 16a arose from a political situation in 1993. It’s very complicated and largely guts the original right of asylum. At the same time there have also been what are more technical reforms, such as those securing the interaction between the Federal Government and the states.
How much room for interpretation do the judges of the Federal Constitutional Court actually have?
The Basic Law is very open in its formulation of the Constitution. The section on fundamental rights in particular is not very conclusive, to begin with. It makes use of beautiful clear phrases, but what they precisely mean is often unclear. The Federal Constitutional Court fleshes out these rights. To do this, it firstly builds on previous decisions: thus in the past 75 years over 160 volumes of substantiated constitutional law have been issued. Secondly, innovations are always possible. For example, in the climate protection resolution, in which the Federal Constitutional Court developed the concept of the protection of fundamental rights over generations.
That means that a submission to the Federal Constitutional Court might not receive the same answer today as it would have 50 years ago?
That depends entirely on what it’s about. One nice example of how things can change is the first decision on Paragraph 175 of the criminal code, what used to be the offence of homosexual activities. The Federal Constitutional Court declared this criminal legislation to be constitutional in 1957 – today that wouldn’t be the case. Since 1994 this paragraph has been abolished. Therefore, while the Constitution is a stable foundation, it must continue to develop and respond to current threats to fundamental rights.
Should we protect the Basic Law more strongly against the enemies of democracy and the rule of law?
The Basic Law contains a range of tools to protect it against its enemies. For example, the restrictions on political parties and likewise on associations, and the option of denying fundamental rights. These tools arose against the background of the Nazis’ seizure of power, which the Weimar Constitution was not able to prevent at that time.
Currently, there is discussion about banning the AfD. Such a ban would have not only a legal but also a political dimension. The question whether applying for this at all is desirable is political, whereas from a legal perspective the question is whether the conditions for a ban are met. The Federal Constitutional Court regards this tool as a double-edged sword. After all, it not only removes a potential threat to the Constitution, it also eliminates a political rival.
In addition, there is at present a discussion about also writing the procedure and institutional core ideas of the Federal Constitutional Court into Basic Law; for example, that the term of office of a constitutional judge should be twelve years and they cannot be re-elected. Until now, the Federal Constitutional Court has determined these questions, with the legislature being able to amend them with a simple majority. This discussion is definitely important, although I can’t see any actual threat to the Federal Constitutional Court at the moment.
What would you like for the Basic Law in the next 75 years?
I’d like the Basic Law always to have democrats on its side, who take care of it and together with other institutions continue to develop it. And that it is clear to them what it means to have such a liberal order on your side.
- Professor Dr Andreas Voßkuhle is Professor of Public Law at the University of Freiburg. His key areas include constitutional law, state and legal theory. From May 2008 to June 2020 he was a judge on the Federal Constitutional Court. He was initially in charge of the Court as Vice-President, taking over as President from March 2010. Together with Matthias Jestaedt, Voßkuhle is co-initiator of the Cluster of Excellence initiative “Constitution as Practice in Times of Transformation (ConTrans)” at the University of Freiburg. You can find more information about it and about Freiburg’s Excellence Strategy as a whole here.
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