I know very little about Germany’s Constitution, so this essay by Alexander Pirang on Lawfare was an interesting insight into it and how it’s a response to the ascension of the Nazis:
In response to this dark past, the German Constitution from 1949, the Basic Law, reads like a compendium of lessons learned the hard way. Its authors wanted to ensure that the country would never slide into tyranny again. This key premise is epitomized by the principle of a “militant democracy,” meaning that a robust democracy ought to be able to fight fire with fire in order to persist. Specifically, under this rationale, there need to be hard limits to fundamental rights such as freedom of expression and association if democracy is going to survive attempts at subversion from within.
The most prominent of these instruments is laid down in art. 21 sec. 2 of the Basic Law. This provision stipulates that the Federal Constitutional Court, the Bundesverfassungsgericht, must declare the dissolution of any political party that seeks to undermine or abolish the free and democratic order of Germany or to endanger its existence. Whereas in the United States such a measure would conflict with the First Amendment, the Basic Law grants the German judiciary the authority to preemptively ban parties from the political arena.
Of course, my first thought is to wonder if it might be abused. I do not know if the judiciary is appointed or elected; both have their perils.
The second is one of popular will. While the above specifies a legal maneuver to be taken in the legal arena, the legal arena is only a human construct; given enough people are outraged, the legal arena dissolves. This isn’t a safeguard so much as a wall, breachable and, for people who believe in absolutes, a blot on the Constitution.
I think that people who believe in absolutes are somewhat damaged, however. And that does lead to another facet – it appears the writers of the Constitution take the position that the people are sometimes unwise, i.e., damaged. Taking the position that a liberal democracy is superior to any other form of government – perhaps unprovable and unpalatable to some – they have tried to set it in concrete.
The American version has some safeguards and an active judiciary, but it’s still an uncomfortable process discovering how much of a pounding it’ll take.
World War II, and in particular the Holocaust, may be seen as lessons to the German people concerning regimes such as the Nazis, and frankly those are lessons that can only be dished out once – and even that’s a catastrophe. While putting in such limitations has their own dangers, given how certain parts of Germany seems to like its strong-man politics, it may make sense to take this approach.
