75 Years of German Grundgesetz

On 23 May 1949, 53 members of the then Parliamentary Council of Germany in Bonn/West Germany adopted the new democratic Constitution of the Federal Republic of Germany (FRD). Scared about deepening the division between East and West Germany and making reunification more complicated, the fathers and mothers of the Constitution called it, in a very humble way, “Grundgesetz” (basic law). They saw it as a transitory solution, to be replaced in a not-too-distant future by a proper Constitution. Seventy-five years later, this constitutional “makeshift” can still be considered one of the most modern and successful constitutions around the globe. Even in times of authoritarian tides rising, the radiance of the German constitutional tradition and praxis is globally unbroken and has influenced the evolution of European constitutional development and beyond over the last decades.

The biggest litmus test for the Constitution came in 1990 when the German Democratic Republic (GDR) joined the FRD, and only minor changes had to be made. In 2024, 81 per cent of German citizens still considered their Constitution as tried and tested and were willing to defend it actively.

Yet, when it comes to putting the Grundgesetz into the longer lines of German history, the German public mostly sees it as an antithesis to the fascist dictatorship and – less often – the socialist one-party state in East Germany. Unfortunately, this is a very narrow and unproductive perspective on German constitutional history. It would be much more appropriate – and a cause for pride – to put this document into the long German history of fighting for freedom, dating back to the 18th century and peaking in the democratic revolutions of 1848, 1918, 1953 and 1989.

Often, the idea of “Verfassungspatriotismus” (constitutional patriotism) is denounced as bloodless, too rational and lacking the “emotional clue” for a deep identification of citizens with “their” Constitution when compared to other nations. However, we should stick with the idea of Ernest Renan as a nation (and its underlying Constitution) as a “plébiscite de tous les jours”. There is then no need for an over-glorified past, used to create a sense of belonging and joint responsibility, no need for old-fashioned ideas of an ethnically homogenous, mysterious “Volk” (people) – often proclaimed by so-called leaders who feel entitled to express a true “Volkswille” (people’s will).

But there is no reason either to rest on the Grundgesetz’s laurels. To withstand the rising forces that threaten democracy, it’s crucial to deepen our understanding of what establishes and maintains a robust constitution. The writer of this blog believes that there are four critical dimensions, all linked neatly together:

1. Curbing inflated entitlements: The most successful constitutions share one beauty: they are sleek. Constitutions are not political wishlists that should be amended with every change in government or shifting public opinion. Regrettably, we can observe an “entitlement inflation” extending individual legal claims, not balanced by an equal increase in citizens’ duties. Once this process has started, it creates self-reinforcing dynamics, spiralling claims ad infinitum, and predictably increases disappointment among citizens as politics can hardly fulfil those entitlements. Politics must be able to withstand giving in to those claims easily.

2. Juridification of political decisions: Putting divisive political decisions into the hands of the “third power” is a recipe for weakening the legislative branch of power, but not only that. This “juridification” will also undermine the specific – and limited – role of the constitutional courts. Given the strong inclination of Germans to resort to law in solving conflicts, constitutional judges are now making more and more fundamental decisions outside the parliament. Both developments – inflating and juridification – often go together and deprive the Constitution of its authority as a “lender of last resort”. Political parties and citizens alike must refrain from delegating decisions to the courts instead of finding political consensus.  

3. Diverse values versus “Leitkultur”. The German society of 1949 couldn’t be more different from that of 2024 in terms of ethnic diversity, economic structure and lifestyle. The question is, therefore, often raised: what makes such a highly diverse society still stick together under the umbrella of a common constitution? It is true that no democratic constitution can indeed sustain itself solely by relying on its own. Weimar died not because its Constitution had been ill-designed, but due to a toxic political culture and anti-democratic elites deliberately killing her. However, where can ultra-diverse societies such as the contemporary German one find common ground that precedes the material and procedural framework of the Constitution? How do we avoid parts of the society which refuse obeying the basic values of the Constitution? In 1949, Christian values and the experience of totalitarian regimes assured a relatively stable and shared ground. In the early 21st century, politics and society can no longer as easily rely on extra-constitutional sources, such as widely shared religious or moral beliefs. The flip side of this coin is that, as the case of sharia shows, by-laws and social practices bear the danger of undermining the secular character of the Constitution. This transition period has not come to an end and will create enormous tensions in interpreting constitutional provisions.

4. Keeping the public discourse alive. Next to unrestricted human dignity, freedom of speech marks the cornerstone of the Grundgesetz as it constitutes the basic mechanism of deliberative democracy: an open public space for rational discourse. Formed by the experience of the (self-)destructive political culture of the Weimar Republic and threatened by Soviet totalitarianism, the authors of the Grundgesetz could hardly foresee the current trends of intolerance, one-sidedness and growing attempts to impose only particular interpretations of values in a more-or-less coercive way. Often, this is done less by the state itself but by much more subtle forms of self-censorship and closing public discourse spaces. And the Constitution per se has hardly any tools to fight against those threats.

    The German Grundgesetz is a masterpiece of Western constitutional history. It bears the scars of 150 years of often violent political conflicts, but also the hopes of many for an open and free society. So far, it has largely fulfilled the aspirations of its founders. Yet, whether there will be enough citizens to bear this “beacon of freedom” into the next 75 years is far from clear and assured.