It happened on May 23, 1949. Germany still wore a dress of ruins and rubbles. Many of the men fell in WWII or still served their terms as prisoners of war. It was mainly up to the women to clean up and reorganize life. And life was ruled by the allies.
Yet, occupation is very costly in the long run, especially as Germany had always been an important factor in world economy and world trade. In addition to this in 1949 already, the front of the allies started to crumble. Harbingers of the upcoming Cold War made mischief in the rows of the allies. All in all in the eyes of the Western allies time was ripe to gradually hand back parts of political and economical responsibility in order to disburden themselves, give the Marshall Plan another stimulus after the monetary reform of 1948 and to position themselves for the upcoming, 40 years lasting confrontation with the Eastern Bloc.
Therefore, the three Western allies USA, UK and France had tasked their charges with the penning of a constitution. At Herrenchiemsee and during the sessions of the Parlamentarischer Rat (parliamentary council, predecessor of today’s German Bundestag) they came up with something they called Grundgesetz (Basic Law). On May 23, 1949 the president and the vice presidents of the Parlamentarischer Rat executed and proclaimed the law in a ceremonial session. It became effective at the end of the same day.
Since then 60 years have lapsed. The fathers and four mothers of the Grundgesetz were farsighted enough to draw up a wording of law and a system of checks and balances with the revolutionary idea of the ultimate instance for the check of constitutionality of laws and actions, the Bundesverfassungsgericht that was flexible enough to work in times of the economic miracle of the 50’s, the student unrests and the following politically motivated terrorism of the late 60’s and 70’s, the rise of extra-parliamentary opposition against nuclear armament of the 80’s. Even though it wasn’t planned like this it survived the process of Reunification of Germany in the 90’s and the ongoing integration of Germany in a supranational organization like the European Union. And it still works in times of global trade and global threats.
However, there is something about the Grundgesetz that can’t be stressed enough in my opinion. The Grundgesetz has changed the Germans and it contains them.
For a long time two things were deeply anchored in the minds of the Germans and for some they still constitute the truth. For one thing, Germans were obedient. In their understanding the state stood above the law. Hence, for them a constitution was just a coat that could be changed by the ones in charge if the rules wouldn’t fit their deeds anymore. Furthermore, Germans were supporters of the somewhat racist concept of a ‘Volksnation’ (people’s nation) as opposite to the idea of a citizens’ nation. A deep expression of this concept is the dissemination of membership in the nation and the associated granting of rights according to the rule of ius sanguine alone.
The Grundgesetz counteracts both ideas. No other constitution I know of contains a clause comparable to the Eternity Clause of Article 79(3) GG:
“Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles One and 20 shall be inadmissible.”
Principles protected by this clause include:
- Principle of democracy
- Rule-of-Law-Principle
- Principle of the welfare state
- Republican form of government
- Principle of federalism
- Separations of power
- Commitment of Jurisdiction, Legislation and Executive to the constitution and all law
- Basic rights and basic liberties.
Basic rights and basic liberties are not connected to the German nationality. Some of them are citizen rights whereas however the German citizenship can be obtained today not only by birth. All basic rights and basic liberties however are effusion of Article 1(1) GG:
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
The inclusion of the term human dignity at a prominent place into the Grundgesetz happened in the light of the dramatic neglect of the principle during Nazi times. The Bundesverfassungsgericht declared it the most important value assessment of the whole legal text. The term human dignity is expression of the idea that every human being has an equal value, equally worthy of protection. Human dignity can’t be obtained. It is simply there. But the right to respect of the human dignity can be violated. It is duty of all state authority to prevent such violations for everyone.
For 60 years now the Grundgesetz and its organ, the Bundesverfassungsgericht, protect the principles and rights. It preaches equality of people and strength of cooperation against the background of historical and cultural conditions of Middle Europe. Thereby it is more than just a legal text. It is basis for a new and better understanding of concepts like state, citizenship, nationality, humanity and community. It acts integrative in a heterogenic society. In short, it is basis for a new self-conception of Germans what constitutes probably good news and a reason to celebrate.
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As I just talked about self-conception I cannot help but think of my other, constitution-less nation Israel. Time and again the call comes up that the Palestinians should accept Israel as a Jewish state/ state of the Jewish people as a precondition for negotiations.
Apart from the fact that the recognition of a state constitutes no force and effect for the statehood according to International Law (a state is defined by three constitutional characteristics: state authority, state territory, body politic), the real question for me is: How about the self-conception of the Israelis? What is their understanding of concepts like state, citizenship, nationality, humanity and community? Or to put it freely adapted from R. D. Precht – Who are we? And if yes, how many?
Israel faces fundamental and trendsetting questions. With regard to foreign affairs she has to deal with the emergence of a parallel state, a for a long time in the retort slumbering twin. The process has to be accompanied by a normalization of relations to her Arab neighbors.
At the home front the rifts run between secular and orthodox Jews and between settlers, hawks and doves. Integration stays a major problem in an immigration country. Majorities shift due to the development of population. Democracy and rule of law are sensible plantlets. And last but not least there stays the permanent question – how much Jewish religion and culture is enough to cultivate a Jewish character on the one hand but to preserve freedoms of the single individual on the other.
While talking about Germany I said the Grundgesetz acts integrative in a heterogenic society. Perhaps a constitution could do the same for Israel. An eternity clause fashioned after the German model could help to protect not just basic liberties and rights of all but also basic principles of the state that would include the Jewish character of Israel.
Hence, the request for an acceptance of Israel as a Jewish state/ state of the Jewish people should not be directed at sources outside the Israeli borders. The discussion should be led at home resulting in the use of the right of a sovereign people to give themselves a constitution. The discussion would help us to discover who we are and if yes, how many.
Tags: constitution, Germany, Grundgesetz, Israel, Jewish Nation, Jewish State, politics
