State and Politics in Germany

“We have a good constitution, but are we in good shape?” The then Federal President Richard von Weizsäcker posed this question on the fortieth anniversary of the Basic Law on May 23, 1989. He was alluding to two things: first, the usual distinction between the text of the constitution and constitutional practice, and second the reinterpretation of the constitution or its substantial alteration through revision and the addition of articles.

The German people as sovereign and the voters in particular generally have no problem with the difference between the text of the constitution and constitutional practice so long as they do not have the impression that state actions lack legitimacy and their trust in representative democracy, embodied in the political personnel, does not particularly suffer. Here there is no absolute limit of what is tolerable. The reality of the constitution develops within the social context. Only when constitutional reforms seek remedially to bring constitutional text and constitutional reality in line do qualitative changes to the constitution attract attention and become a political issue.

Functional changes in the Basic Law

Up to now Germany has foregone giving a legal basis to the most important practical reinterpretations of the constitution in an amendment to the Basic Law. The cause of such reinterpretations has been mainly the German party system, which is barely mentioned in the Basic Law. There political parties appear only in Article 21. This begins with the sentence: “Political parties shall participate in the formation of the political will of the people”. A revised Basic Law would have to proceed from the logic of party competition if it wanted to reflect German political reality. Assuming a certain ideological and organizational unity in the parties, their influence turns the division of powers in democracies into an interlocking net of powers. This has changed the constitution without introducing a discernible institutional change. But the institutions have changed their function.

Examples of these changes in the form and function of the Basic Law in political practice are numerous. One is the party-political remodeling not only of the parliament, but also of the rights of individual representatives. With the help of a simple system of controls such as the rules of procedure, but also by means of inner-party constraints of solidarity and career, this remodeling has made of the Bundestag a parliament of factions. In a parliament of factions party discipline dominates, which for many representatives not seldom means an obligation to follow the party line – hence a deviation from Article 38 of the Basic Law which guarantees that representatives “shall not [be] bound by orders or instructions, and [shall be] responsible only to their conscience”.

A further example of the new constitution that has resulted from the logic of party democracy, and particularly of coalition government, is the restriction of the major role in the formation of the federal government that Article 64 of the Basic Law assigns to the Chancellor. This reads: “Federal Ministers shall be appointed and dismissed by the Federal Chancellor”. But in fact the Chancellor can at most decide upon the selection of ministers from the ranks of his own party. Were he to attempt to do this for ministers from the coalition partner, he would provoke a break within the coalition and so the end of his government.

Strategic handling of the Basic Law

In the debate over the Immigration Bill and the evaluation of the vote cast by the state of Brandenburg, those who wanted to make a unified “Yea” out of the state’s split vote fabricated a competence for the Minister President to set guidelines for the voting, and this was actually seriously discussed in public. The Federal Constitutional Court, on the contrary, confirmed the obvious provision, noting that the Basic Law demands a unified vote.

The Court was less consistent in the question of permitting the self-dissolution of parliament through the backdoor of a decision on the part of the Chancellor, a procedure that is not provided for in the Basic Law. Here too the strange idea of putting the certified rules in question came from politicians, this time from Chancellors Helmut Kohl and Gerhard Schröder. Both paved the way to new elections after a dissolution of parliament by means of a “fake” vote of confidence in the Bundestag, about which nothing is said in Article 68 of the Basic Law. When here Paragraph 1 refers to a proposal by the Chancellor to call for a vote of confidence, it surely does not mean the alternative of feigning lack of confidence in him, especially as Article 67 of the Basic Law provides for the (genuine) case of lack of confidence in the form of a constructional vote of no confidence. Nevertheless, the Constitutional Court did not curb this infringement of the rules, but instead invented the “question of confidence directed to the request for dissolution”. This construction virtually encourages politicians to bend the Basic Law to their purposes by making the decision about the of permissibility of a question of confidence directed to the request for dissolution dependent on the Chancellor’s “strictly personal perception” and his deliberative assessment of the situation.

Hardly anybody in Germany would dispute that the Basic Law is a good constitution. And there is also a consensus that taking account of constitutional reality is part of understanding the constitution. But an emerging lack of respect for the rules laid down in the Basic Law is a cause for concern. The Basic Law can retain its authority only if it obtains without regard to person, institution or party.