The Warning of the Basic Law
Germans celebrate on May 23 the 75th anniversary of their Basic Law, which since its promulgation has embodied the role of a constitution of a democratic and social federal state. German history, especially the failure of the Weimar Republic and the catastrophe of Nazi dictatorship, heavily influenced the Basic Law and the effort, in the immediate post-World War II years, to forge a viable democracy. There was a clear focus on the need to build into the document guardrails against repeating past mistakes while reinforcing the values of a federal system of government with which citizens could closely identify. Overall, the Basic Law has successfully guided Germany into stability, security and prosperity.
When the Basic Law was adopted in 1949, Germans living in the US, British, and French occupation zones were presented with a kind of birth certificate. On it was the name of the country in which they were now living—the Federal Republic of Germany. That certificate would serve as a preliminary legal framework because it was designed only for the period leading up to German reunification. Its preamble stated that the German people “has … acted on behalf of those Germans to whom participation was denied.”
Forty-one years later, upon the long-awaited reunification, the preamble was amended to state that Germans have “achieved the unity and freedom of Germany in free self-determination”. The Basic Law thereby applied to the millions of Germans who had been residing in the German Democratic Republic since 1949.
The Basic Law’s embrace of East Germans meant they had to absorb almost overnight a constitutional framework that their counterparts in the West had known for four decades.
Germany’s evolution since 1990 has not been frictionless. The merging of two societies on both sides of the Iron Curtain has been gradual. Yet the Basic Law has served as a platform to help manage that unique and historic process. It stipulates a set of values before providing copious tools with which to implement and manage them. As far back as 1949, this laid the foundation for a consensus around economic and political frameworks that proved resilient through continuous challenges propelled by social change nationally, regionally (Europe), and globally. The Basic Law has been amended more than 60 times in response to shifting political and economic developments.
More recently, as unprecedented challenges have emerged—terrorist threats, waves of refugees and asylum seekers, global pandemics, environmental decay, and new European wars—Germany has had to reassess its capacity to respond within the confines of the Basic Law and the values that it represents. Its guardrails, including the duties of both parliamentary chambers and the rigorous watchdog role of the Constitutional Court, are in the hands of those who have sworn to uphold democratic principles but remain subject to checks and balances of the citizenry.
Those who wrote the Basic Law were all too aware that Germans, amid the ruins of their country, would not be able to simply turn a page and adapt immediately to new system of government. They drafted a framework for showing themselves capable of supporting a government that would prevent the return of authoritarianism. There have been many tests of that capability since 1949, though arguably none as formidable as the one presented by the far-right Alternative for Germany party. It is a test similar to ones confronting other democracies in Europe, the United States, and elsewhere.
In 1787, when a group of American leaders gathered in Philadelphia to forge a constitution for a newly born republic, one exhausted thinker, Benjamin Franklin, departing after the deed was done, answered a query from a prominent member of society: “Well, Doctor, what have we got, a republic or a monarchy?” The legendary reply: “A Republic, if you can keep it.”
That was the Basic Law’s warning to Germans in 1949, one that remains equally relevant for them now. Indeed, it remains a warning for all who defend democracy today.