Nothing is quite as permanent as a provisional arrangement

The German title of the German constitution is Grundgesetz für die Bundesrepublik Deutschland. Literally translated, that would be the Basic Law for the Federal Republic of Germany. There is a German word for constitution (Verfassung) and previous constitutions were titled that way, as those of the federation’s states still are. But the framers of the present federal constitution avoided that word, calling it a basic law instead.

The reason is that it originally operated only in West Germany. And the framers really wanted to avoid the impression they were creating a new state and a constitution for it. Rather, they were creating a stop-gap for governing the free part of Germany until the parts occupied by communists would be returned. In addition to East Germany this was also about large parts of present day Poland. When reunification actually happened 40 years later the temporary arrangement remained in place.

You can see the trace of this story in how the preamble was amended at the reunification (my translation, deleted parts stricken, added parts bolded):

Aware of its responsibility before God and men,
animated by the will to preserve its national and governmental unity and to serve the peace of the world as an equal member of a united Europe, the German people
in the states of Baden-Württemberg, Bayern, Berlin, Brandenburg, Bremen, Hamburg, Hessen, Mecklenburg-Vorpommern, Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland, Sachsen, Sachsen-Anhalt, Schleswig-Holstein, Württemberg-Baden, and Württemberg-Hohenzollern, and Thüringen,
has by virtue of its constituant power resolved on given itself this Basic Law for the Federal Republic of Germany
so as to give governmental life a new order for a transitional period.
It has also acted for those Germans to whom participation was denied.
The whole German people remains challenged to complete the unity and freedom of Germany in free self-determination.
This Basic Law thereby applies to the whole German people.
And the end mirrors the beginning:

Article 146

This Basic Law, which after the completion of the unity and freedom of  Germany applies to the whole German people, looses its force on the day on which a constitution, resolved on by the German people in free determination, enters into force.

So that was the plan. The real constitution would be worked out at the reunification. Why did it not happen? Well, the framers recognized the reunification wouldn’t necessarily happen in one big swoop. In fact it didn’t. Saarland, which had been controled by France, acceded in 1957, long before the actual reunification. So there was a plan for piecewise accession, codified in the old article 23 [1]:

This Basic Law initially applies in the territory of the states of Baden, Bayern, Bremen, Groß-Berlin, Hamburg, Hessen, Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Schleswig-Holstein, Württemberg-Baden und Württemberg-Hohenzollern. In other parts of Germany it is to be implemented after their accession.

And in the fullness of time it was decided to unify under article 23 rather then under article 146. At that time I was in primary school and the conflict over the mode of unification was the first political question I took real interest in. I was fiercely in favor of a joint constitutional convention, followed by a referendum to adopt the new constitution. I thought it was obvious: Now that we were returning to our place among the world’s democracies, wasn’t it just logical to get our constitution by democratic means and with participation of those to whom it had previously been denied?

This added into a feeling people where not really taking it as serious as I was. For example, on the day of the formal reunification we had a ceremony in school. There were a few large maps of divided Germany and the teachers blotted the border out with whiteout[2].  Then we all sang the national anthem, which we had been thought the week before for that purpose. Modern Germans being deeply suspicious of nationalism, this was about the hight of patriotic ritual I experienced before I had to spend a few months in the army many years later.  But about a month after that we used a large map of Germany in class. It still had the border. And when I asked how that could be I was told they had only used some old damaged maps, which had meanwhile been disposed of, while the good ones remained in use with the border.  I felt totally cheated.  That was exactly the kind of folk that would experience a national blessing they wouldn’t have dared to dream of in their lifetime, and then not even go through the motions of holding a proper convention. Helmut Kohl was our chancellor in that time and I hated him for the mode he had chosen.

Today I think he was right and I was dead wrong. Unifying under article 146 would have taken time. And what I didn’t realize then was we didn’t have that time. We got our unity because Gorbachev was willing or resigned to give it to us. Just a few months after the reunification there was a coup of more serious communists in the Soviet Union. Gorbachev was nominally returned to power after a few days, but real control passed to the Russian authorities and soon enough the Union dissolved.  If the empire had still been salvageable at that point, I’m not sure the putschists  wouldn’t have won.  If I had gotten my will, our convention might have shared the fate of the Russian one of 1917.

And, harsh as it sounds, those to whom participation had been denied didn’t have any useful ideas to offer. The East German revolutionaries were basically divided between those who wanted exactly the deal they got and those who thought this was a good moment to reform and do socialism right. At the time few people in the west realized how failed the East German institutions were. If we had worked out a new order instead of instantly imposing the western one, by the time we’d have worked it all out nobody would have been living in the East to ratify it.  Even as it was the East lost about 10% of its population by migration to the West. Without a perspective of the West coming to them soon, very few people might have stayed.

So I think our government was right to grab East Germany while it still was for grabs, and that was only possible by uniting under article 23. But what about now? This was twenty years ago and article 146 still exists, so why haven’t we called a convention in the mean time? Occasionally there are proposals to do precisely that, but none ever gained serious momentum.  There are some good reasons against doing it. As political realities are, the Basic Law is mostly uncontroversial. The new constitution would basically be the old one with a new title. So we would be spending a lot of money on symbolism.  Also, if we held a referendum about a new constitution there would be the risk of it being rejected at the polls.  Legally, that wouldn’t be a problem, we would just go on with the Basic Law. But the constitutional order surely would loose a lot of prestige if an essentially identical constitution had been explicitly rejected by the sovereign.  Still, I think we should do it. That symbolism is important. I still feel it’s the nationally self-respecting thing to do.

But realistically, that ship has passed. As the saying goes, nothing is quite as permanent as a provisional arrangement.

Footnotes    (↵ returns to text)

  1. Meanwhile there is a new article 23 dealing with something else
  2. For my younger readers: Whiteout was a white fluid used to cover typos made on paper with typewriters. After it dried one could type over the re-whitened surface.  Those were about the last days when pre-teen kids still knew what it was. A few years ago I was shocked about an intelligent guy in his last year of high school not knowing about carbon paper. Objectively, he had no reason to know about obsolete technology, but to me it still feels almost like not knowing what a pen is. Perhaps I’m getting old.
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6 Responses to Nothing is quite as permanent as a provisional arrangement

  1. Hello,

    Your posts on the eternity clause and Article 146 are correct. I have had personal experience regarding the German government’s injustices here. There is no legal recourse, i.e., there is a Guantanamo Bay in Germany. You can see it in the claimed amendment of Article 10 GG in 1968, ( i.e., the second sentence of Article 10 paragraph (2)), as well as in Article 19 paragraph (4) (last sentence), and Article 93 paragraph (1) 4a (a reference to Article 20 paragraph (4) which is also illegal.

    I have been writing about this in different posts on my blog

    The fact is that this government is illegitimate, i.e., it has supplanted the Basic Law for the Federal Republic of Germany (a free liberal democratic society) with a totalitarian document. And they are lying, Germany does not have a “constitution;” because none was “adopted by a free decision of the German people” under Article 146.

    I was also writing the same on Wikipedia with references in accordance with Wikipedia’s policy, but “editors” there chopped it to pieces and then deleted it. They converted the ‘Eternity clause’ page (which was a page focused on German law) into a catch all international article regarding all ‘eternity clauses’ which is already in Wikipedia’s article ‘Entrenched clauses’: They did this to detract from German’s ‘eternity clause’. Later, they  retained only a few short passages that I had written. I accused them all of vandalizing the article and then  they had a Wikipedia  “administrator” block me from Wikipedia. Now I am writing the same in JurisPedia’s ‘Eternity clause’ page. I would like to stay in touch.


    H. Everest Wilhelomsen

  2. Icelander says:

    A reactionary should probably be wary of any efforts to call a constitutional convention. A constitution composed in 2012 would do its best to nail the future down with the ideology of 2012. See the recently composed Icelandic draft constitution for an example – the preamble says that “our diverse origin enriches our society” and there are articles which I fear will give the future judiciary very wide latitude in interpretation. Take article 8, “All shall be guaranteed a right to life with dignity. Human diversity shall be respected in every way.”

    • Gilbert says:

      Actually I’m very skeptical about constitutions constraining future generations. Basically constitutions are interpreted by people and the interpretations are very creative for all constitutions I ever heard about. This doesn’t even depend on wishy-washy articles. The ECHR , for example, is a very clear document without nebulous rhetoric. Still, basically the first thing the court charged with implementing it did is deciding it is a living instrument.Today it’s amazing what kind of BS they can “deduce” from it. So basically the influence of constitutions on the future is much smaller than is commonly imagined.

  3. Icelander says:

    Those are good points. I like your blog, by the way.

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