Our democracy is under pressure and must defend itself against its opponents. The Basic Law plays a central role in this, writes political scientist Christina-Marie Juen in her guest article on the 75th anniversary of the constitution.
Democracies are under pressure worldwide. We are seeing conflicts within and between states, wars and highly polarised societies. The rise of left-wing and right-wing populist and extremist parties in particular is jeopardising democratic norms and principles within Europe too. The growing popularity of these parties among the electorate is striking.
In Germany, we are seeing with the continuing and currently increasing success of the Alternative for Germany (AfD) that right-wing and populist attitudes have also gained a foothold here. In political science research, we can show that these are not just based on pure protest behaviour, but are based on deep-seated attitudes. Voters of right-wing populist parties are also more willing to accept illiberal positions of politicians and thus also support anti-democratic policies and behaviour.
This harbours dangers for democracy - from which the Federal Republic of Germany knows how to protect itself.
Lessons learnt from Weimar
The second German democracy has learnt a lot from the experiences of its predecessor state, the Weimar Republic. Parliamentary majorities for decision-making were secured through the introduction of a blocking clause for parties to enter the Bundestag, and the constructive vote of no confidence prevents periods without a government. And the constitution of the Federal Republic of Germany - the Basic Law - is also based in its central components on lessons learnt from the Weimar Republic.
The structure and basic principles of the FRG are set out in Article 20 of the Basic Law. It stipulates not only that Germany is a democratic federal state, but also the essential right of the people to vote. In addition to these principles of the federal state and the principle of democracy, Article 20 also enshrines the separation of powers into the legislative (legislation), executive (government) and judicial (jurisdiction) branches.
This Article 20 is so central not only because it establishes the state structure of the Federal Republic, but also because it is additionally protected by another article of the Basic Law. The guarantee of eternity in Article 79(3) protects the democracy of the Federal Republic to a special degree and makes it a defensive democracy.
This article stipulates that an amendment to the Basic Law is, on the one hand, inadmissible with regard to the division of the federal government into federal states and their right to have a say. Secondly, it is constitutionally prohibited to amend Article 1 and Article 20. The Basic Law thus rules out the possibility of a parliamentary majority abolishing human rights, the federal state, democracy and the separation of powers. Here, too, the lessons of the Weimar Republic are evident, as the Reich President was able to suspend citizens' civil liberties and fundamental democratic principles by emergency decree(s) in times of crisis. The suspension of these very rights ultimately allowed the rise of the National Socialist regime.
Great importance of the Federal Constitutional Court
Once again, the Basic Law plays an important role here, as it also ensures that democracy can defend itself against anti-democratic enemies. Party bans make it possible in principle to ban anti-democratic parties. However, a party can only be banned before the Constitutional Court, which represents a high hurdle. This is because what gives the protection of parties - and therefore a free democracy and diversity of opinion - a special status in the Federal Republic of Germany also makes it more difficult to ban anti-democratic parties. The high hurdles for a party ban are therefore important on the one hand in order to give citizens the opportunity to express their political preference in free elections. On the other hand, they also enable potential enemies of democracy to enter parliament.
The great importance of the Federal Constitutional Court in protecting the Basic Law is currently being emphasised particularly strongly in public discourse. The German Bundestag and Bundesrat are responsible for electing the judges, which, depending on the composition of the parliaments, could also lead to the court being potentially jeopardising democracy. To strengthen the protection of democracy, it is therefore being considered to enshrine the election of federal constitutional judges in the Basic Law, which would mean that they could only be elected by a two-thirds majority. This would provide greater protection for the judiciary as a central pillar of the Federal Republic against enemies of democracy.
