75 years of the “Grundgesetz”

2024 is an important year to celebrate the German constitutional history. 175 years ago, in March 1849, the first democratically elected German Parliament, the “Frankfurt National Assembly” (Paulskirchenversammlung), adopted the so-called “Frankfurt Constitution” (Paulskirchenverfasssung), the first democratic constitution for a united Germany. It was strongly influenced by the Constitution of the United States of America. Unfortunately, it never entered into force, because the Prussian King refused the imperial crown, offered to him by the National Assembly, and to become the Head of State of a united Germany (“I got my crown from God and not from the people”!). However, the ideas and principles laid down in this first conception of a German democratic constitution, lived on:

- Fundamental and guaranteed personal and political rights

- A federal state

- Separation of powers: Parliament, Government and an independent judiciary

These main principles were also found in the second democratic and the first republican constitution of Germany, the “Weimarer Verfassung”, in the wake of the collapse of the German Empire after the Great War. It entered into force in August 1919, 105 years ago. The first German Republic only lasted 14 years before the country fell into the abyss of the Nazi horrors. Both constitutions, Frankfurt and Weimar, did not fail because they were bad constitutions. They failed because there were not enough democrats to support them!

After the total collapse of the Nazi regime and the liberation in 1945, there was a third chance for Germany to lay the groundwork for a democratic nation. Unfortunately, the circumstances at the time did not allow for a constitution for the whole of Germany. So, with the help and guidance of the western allies, the Parlamentarische Rat (Parliamentary Council) in West Germany drafted a constitution which was officially adopted as the “Grundgesetz (Basic Law or Fundamental Law) for the Federal Republic of Germany” on the 23^rd of May 1949. The eastern part of Germany, the German Democratic Republic, gave itself a constitution on the 7^th of October 1949.

The Grundgesetz was meant as an interim constitution, as only a part of and not all of the German population could participate in its creation and freely decide about it. No one thought that the separation of the two German states would last so long. It was 40 years later, in November 1989, that the Berlin Wall came down and on the 3^rd of October 1990, the Grundgesetz officially became the constitution for the re-united Germany, although the name Grundgesetz remained.

For 75 years, the Grundgesetz has guaranteed freedom, peace and democracy in Germany. This success story is indeed a reason to celebrate. It is remarkable that the Grundgesetz emerged from the ruins of World War II, from a completely destroyed country, and that it´s still working after 75 years, for 34 years in the re-united Germany.

In the past decades the Grundgesetz proved its flexibility to adapt to changing societal developments and various challenges, e.g. the terrorism of the 1970s, the re-unification, economic and political crises. Its text has been changed nearly 70 times – without losing its core substance. The question is whether the Grundgesetz is fit for the actual challenges with the rise of anti-liberal, anti-democratic forces, not only in Germany but in most democratic societies.

This question was the subject of a symposium organized by the German Consulate General in Vancouver, with distinguished experts from Germany and Canada, analysing the actual state of the Grundgesetz, based on surveys, whether some of its articles are still up-to-date (e.g. Art. 16: the right of asylum) and how it is equipped for the global challenges like the climate change and artificial intelligence. The good news is that an overwhelming majority (about 80%) of the German population would actively defend the Grundgesetz, the values, freedoms and institutions based on it. The institutions most trusted in Germany are:

1. The Federal Constitutional Court

2. Science

3. Police

Whereas the institutions least trusted are:

1. Parliament

2. Government

3. Media

These assessments are equal in the east and in the west of Germany.

The most important issue for a majority of Germans is, after their personal economic situation, the migration question. It is interesting to see what Germans expect from the people coming to Germany:

1. Honour and respect the values of the Grundgesetz

2. Speak the language

3. Earn your own living

4. Adapt to the German culture and way of life

The Grundgesetz also has to deal with the challenges of the future. In 2021, the Federal Constitutional Court ruled that the government has to do more to combat climate change. The reason: the effects of climate change can lead to a lower level of freedom! This is an interesting verdict as it is a new interpretation of rights, the rights of the individual versus the rights of society.

Another challenge is the question how the principle of the separation of powers as an intrinsic element of the Grundgesetz can cope with modern communication (social media) and artificial intelligence. The rule of law guarantees our constitutional rights; it limits power but it also enables power. The principle of the “wehrhafte Demokratie” (resilient democracy) was created in the era of the printed press, radio and the emerging television. Modern communication, however, endangers our public sphere and discourse.

So, we all have to find answers to the question what we can do to safeguard what we have and to make our constitutional patriotism resilient.

Best regards,

Marc Eichhorn
Consul General