“The Basic Law is better protected than we sometimes may think”

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Professor Peter M. Huber holds the Chair of Public Law and Political Philosophy at LMU’s Faculty of Law. For twelve years he served as a justice at the Federal Constitutional Court and spent more than a year as Minister of the Interior for the Free State of Thuringia. In this interview, Huber explains how, for 75 years, the Basic Law has proven itself as a bulwark to protect democracy.

Do you know one or more articles of the Basic Law by heart?

Peter M. Huber: There are several, I think. We could begin with “Property entails obligations”. And then there is “The federal flag shall be black, red and gold”. And “This Basic Law shall cease to apply on the day on which a constitution is freely adopted by the German people.” But there are also other articles that I also know by heart.

You didn’t start with Article 1...

“Human dignity is inviolable.” That is obviously the most important provision of the Basic Law. There is no question about that. However, since it effectively distills the essence of the Basic Law, it didn´t come into my mind immediately.

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Is it worthwhile for normal citizens to know the content of the Basic Law?

Of course it is. The more of it you understand, the better it is. However, it is not indispensable. But what is important is the idea that, on the grounds of the Basic Law and with the aid of the Federal Constitutional Court, everybody can get something like justice. That is important to citizens’ confidence in the institutions and stability of our country, and that is ultimately the logic behind the widely used phrase “I’ll take that to Karlsruhe [the seat of the Federal Constitutional Court] if I have to”. What the Federal Constitutional Court’s 165 volumes of decisions have made of this relatively brief text is inseparably intertwined with the Basic Law. So too is the way the Court has repeatedly adapted Germany’s constitution to the developments of the day, from overcoming authoritarian state structures after the war to mitigating climate change.

The Basic Law is now 75 years old. Seen in international comparison, can we say that it is now a constitution rooted in tradition?

It still can’t compare with the 237-year-old American Constitution. That said, to this day the British and the Israelis do not have a written constitution; and most constitutions of other countries are younger than Germany’s Basic Law. For many other countries, it has set an example and still does so, above all after dictatorships have been overcome. Greece, Portugal, Spain and South Africa are examples that come to mind. Moreover, since the German nation state was founded in 1871, no constitution has ever remained valid for more than 75 years.

You served as Minister of the Interior in a state government led in Thuringia by the CDU [Christian Democrats]. In precisely this state, one party whose regional association has been classified by the Bundesverfassungsschutz (Federal Office for the Protection of the Constitution) as “definitely right-wing extremist” is growing stronger and stronger. Is the Basic Law able to cope with such developments?

The Basic Law establishes a “resilient democracy”, as it is referred to in international debate. It includes the option of having parties banned, having constitutional rights forfeited, banning the formation of associations and so on. It demands loyalty of its officials, soldiers and judges and imposes sanctions on violations. These are all instruments that the Weimar Constitution did not have. And there is a balanced separation of powers, such that a coup or straightforward seizing of power are almost impossible under the Basic Law. Compared with other countries, the democratic state under the rule of law enshrined in the Basic Law is better protected than public debate would sometimes give the impression. The same goes for Thuringia’s state constitution, incidentally, a very topical subject of debate. Ultimately, however, a democracy rests on popular sovereignty and on the majority of the people remaining rational and reasonable.

Even a political minority can influence the composition of the Constitutional Court. There are warnings that, in this way, anti-constitutional ideas could find their way into decisions made by the supreme court. Does that worry you?

Not very much, to be honest. The Bavarian Constitutional Court currently has two AfD [Alternative for Germany] judges for the second legislative term in succession. That is not so nice. But as far as I can see, they have not had any noticeable impact on its jurisprudence. At the Federal Constitutional Court, the requirement for a two-thirds majority for the election of justices should normally be enough to prevent enemies of the constitution from being appointed. Apart from which, any such judge also needs a majority in the Senate, i.e. the support of at least four colleagues. In the Chambers unanimous decisions are required. If a majority of the constitutional judges did consist of enemies of the constitution, the liberal democratic order would long since have been overturned.

Would it be conceivable and desirable to have a European constitution?

The various treaties regarding the founding of the EU and how it works are essentially a European constitution. But the notion that we could turn the European Union into a kind of scaled-up version of the Federal Republic in which member states play the role of the German Länder is not realistic. Ask around in Italy, France or even here what people think of such an idea… The great thing about Europe – as reflected in its motto, “united in diversity” – is its vast plethora of cultures and languages. The purpose of the EU is to do together those things for which the individual member states are too small or too weak, and to do so as effectively and compellingly as possible. However, the individual nations are the historical foundation on which this Union rests, and each has its own constitution. Anyone who wants to iron out those differences will harm Europe and will fail.

There are social science teachers who advise their pupils to always have a copy of the Basic Law with them. Is that a good idea?

If you visit the Federal Constitutional Court in Karlsruhe, they give away small copies of the Basic Law. You can also get the same kind of mini-editions elsewhere. It is obviously a good idea if people can carry their own little Basic Law with them. It helps to familiarize the individual more closely with the appellative function of the constitution.