Eternal articles and judical review

Posted on 2012-03-17 by Gilbert

One of the most famous features of the Basic Law is its eternity clause in article 79 (official translation, emphasis mine):

Article 79
(1) This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification.
(2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.
(3) 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 1 and 20 shall be inadmissible.

Länder is the German word for states. Article 1 declares human dignity inviolable and introduces the fundamental rights, clarifying that they are actual law rather than declarations of intent. Article declares The Federal Republic of Germany a “democratic and social federal state” and protects popular sovereignty, the separation of powers, and the rule of law. It also contains a right to resistance against people trying to overthrow the constitutional order, but since that is a later amendment it is disputed whether that right is covered by the eternity clause.

So some principles are simply not subject to amendment. Most legal scholars think this would apply even if we got a new constitution under article 146.

I understand the idea behind this guarantee. The framers remembered freedom abolishing itself in 1933 and this never should be an option again. But this ignores that laws don’t apply themselves. In practice this guarantee must be interpreted and that gives the Federal Constitutional Court judicial review of constitutional amendments. I don’t think this is much of a protection against a new Machtergreifung. A majority sufficient to amend the constitution is also sufficient to stack the court. But in normal times it gives the Federal Constitutional Court a tool for striking down even constitutional amendments. Now most Germans don’t worry about judicial usurpation, but I do. The idea that a council invested with significant political power would become apolitical just by being called a court is absurd.  And in fact the framers would be very surprised about some principles the court found in their work during the past 50 years. The words “Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed.”, for example, “mean” that the state must run “independent” television channels but not newspapers.

Some judicial review is worthwhile. Without it the political process would just ignore all fundamental rights.  But we should never forget that it is effectively the rule of people just as fallible as  those in the legislature.  And if evil laws are unavoidable, as they are, then I prefer evil laws coming out of the democratic process. On balance I feel judicial review is worthwhile if the people can amend the constitution by a simple majority in a referendum, thus overriding those judicial excesses they actually care about.  The German requirement of a 2/3 majority in the Bundestag and the Bundesrat is already making it too hard for my taste.  And as hard as it is to amend the American federal constitution, Americans have no reason to be surprised their constitution was effectively replaced by case law only symbolically related to its text.  The German eternity clause is the far end of that continuum. So far it has never been applied, but if the court ever gets into that habit it will be the end of the values it was meant to protect, leaving us with a council ruling without any way of overriding it through the democratic process. So the eternity clause is a very bad idea.

While we’re talking about judicial review, the Basic Law introduced a useful procedural rule copied by most later constitutions:

 

Article 100
(1) If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law.
(2) If, in the course of litigation, doubt exists whether a rule of international law is an integral part of federal law and whether it directly creates rights and duties for the individual (Article 25), the court shall obtain a decision from the Federal Constitutional Court.
(3) If the constitutional court of a Land, in interpreting this Basic Law, proposes to deviate from a decision of the Federal Constitutional Court or of the constitutional court of another Land, it shall obtain a decision from the Federal Constitutional Court.

“Land” is  German for what I translated as “state”. So basically every constitution is interpreted by only one court and any other court thinking a law unconstitutional must refer it to the court interpreting the constitution. In hindsight that rule is a no-brainer. If every court can strike down laws, those decisions will be appealed to the highest court anyway. The only thing lost by sending such matters up directly is the ability of individual judges nobody ever heard of going berserk.

Posted in Politics | Tagged , , | 2 Comments

Half-hearted federalism

Posted on 2012-03-17 by Gilbert

As the name might imply, the Federal Republic of Germany has constituent states.

Federalism, of course, has many advantages. It keeps decisions closer to the people, allows laboratories for experimentation, etc. In theory most Germans agree with this, but when it comes to practical examples most of us get squeamish. Almost everything seems too important to be arranged in 16 different ways.

This leads to the states having much less legislative competences than the states of other federal countries. The Basic law reserves some questions (such as national defense) to the federation and some (such as schooling) to the states exclusively. But most questions are matters of concurrent legislation. This is basically what Americans know as the only kind of federal competence: Both the federation and the states can legislate, but where they conflict federal law prevails. In practice, the federation has exercised almost all concurrent powers. For example, almost all of civil and criminal law is federalized.

The most important legislative powers reserved to the states are on schooling and culture. But even there most Germans are weary of legal “patchwork”. So the states organize into compacts to make their systems similar.

The other aspect of federalism is an institutional separation between the states and the federation, and we don’t much care for that one either. For example, the income tax is fixed by federal law but collected by the states, with each sovereign getting half of the revenue. If I think the state tax office overcharged me, I can sue in a state court, but the looser can appeal to a federal one. Similarly, almost all crimes are created by federal law, but investigated by state police and prosecuted by state prosecutors in state courts. But if it’s important enough, final appeal lies to a federal court. There are lots of exceptions, but the default pattern is that the states execute federal law.

The final aspect of federalism is the states’ participation in federal government. In Germany this happen through the Bundesrat (Federal Council). The Bundesrat is almost totally dissimilar to the American Senate. It is composed of delegates of the state governments, that is of the executive departments. The states’ votes are roughly staggered by population, but not quite proportional. States can’t split their votes.

When it comes to competences, by default the Bundesrat has a veto the Bundestag (parliament) can override by simple majority. Since the government has a permanent majority in the Bundestag, that is just a formality. There are, however, very important exceptions needing  active consent of the Bundesrat.  The precise rules are very complicated, but the main grounds necessitating the Bundesrat’s consent are amending the constitution, changing anything about taxes of which the states get (part of) the revenue, imposing financial burdens on the states, and prescribing the organization of the states’s administrative bodies[1].  If the states and the federation were as separate as their American counterparts these would be very rare exceptions indeed. But remember, in Germany the states mostly execute federal law, bearing the financial burden thereof. And often the federation will want to prescribe something about the organization of the agencies that will end up executing the law. So in practice, most important laws need the consent of the Bundesrat. Sometimes it’s possible to separate the controversial part from the part needing consent and pass them separately. But often it isn’t.

In practice, the state governments vote by party line. This is seen as one of their most important functions. To a large extent the states’ general elections are seen as indirect elections of the Bundesrat delegation. And most of the time the majority of the Bundesrat is opposed to the majority of the Bundestag. While we can’t get it between the legislative and the executive department, we do like installing divided government between Bundestag and Bundesrat. So more often than not, the need for consent of the Bundesrat reduces to the need for consent of the opposition.

I think my title sums it up: This is a fairly half-hearted federalism. Germans really don’t identify with their home state anywhere as closely as Americans do with theirs. But if that’s what we want, I wonder why bother with state parliaments that have very little power.

If it was up to me, I would try some disentanglement. The federal government should have to reimburse the states for anything it mandates them to do. That way federal law no longer could impose financial burdens  on the states and one main reason for consent of the Bundesrat would disappear. On joint taxes, the states should be able to fix their own rates as a percentage of whatever the federation mandates for itself. That way the states could compete on taxes and service levels. In compensation the Bundesrat should loose its veto over the rest of the tax rules. The Bundesrat, which thus would loose most of its absolute veto power, should get a one-year suspensive veto on everything, like the British house of Lords. Also it should be changed to delegations of the states’ legislatures, which should be elected by proportional representation and be allowed to split their votes. Finally, some areas of concurrent legislation should be returned to the states. Land titles, for example, are by definition local and thus should be regulated locally.

In reality, of course, it isn’t up to me.

Footnotes    (↵ returns to text)

  1. Actually this last one was slightly relaxed in 2006. Now the federation can regulate administrative organization without consent of the Federal Council but the states can deviate from such law.  If the federation wants to exclude the possibility of deviation that still needs consent.  Statistically this has reduced the number of laws that need consent, but I suspect mainly for uncontroversial laws that would have passed anyway.↵
Posted in Politics | Tagged , , | Comments Off on Half-hearted federalism

“Capital punishment is abolished.”

Posted on 2012-03-17 by Gilbert

Those are the simple words of article 102 of the Basic Law.

Nowadays most developed countries have abolished capital punishment and many have done so constitutionally. But in 1949 constitutional abolition was still unusual. We Germans tend to over-idealize this decision, thinking it a reaction to Nazi atrocities.  In fact it was at least partially meant to save the neck of war criminals. Still, it is a civilizational achievement to be proud of.

Capital punishment may be necessary in third world countries where long term imprisonment is not an option. And at earlier points of our history it might have been necessary for the same reason.  But in a modern industrialized nation there is no excuse for still imposing it.

The one downside I see in this achievement is how it moves the Overton window. With death totally off the table the debate moved on tho lifetime imprisonment. After pardons became standard the Federal Constitutional Court ordered a formalized review scheme. Nowadays the average length of a “life sentence” is just under 20 years.

I understand the humanitarian instinct behind that development.  We must avoid turning criminal punishment into vengeance. But I still think it is misguided. The deterrent effect of real lifetime imprisonment is pretty much an empirical fact, though it probably wasn’t as certain at the time of the constitutional judgment. Also, I don’t think we know how to resocialize everybody.  In the case of sexual murders we now talk of resocialization if the risk of recidivism is reduced as far as it is reducible. But that is still a far cry from reducing it to the risk of normal people committing that kind of crime. Not locking some people up for their lifetime has too high a cost in innocent life and I don’t think the rights of murderers can justify that.  The laudable effort not to treat criminals as objects ends up treating innocents as objects expendable in the course of our humanitarian efforts. I don’t think that leaves us with much of a standing to criticize Americans still executing people.  Also, I fear an eventual backslash bringing capital punishment back.

But still having done away with capital punishment is among the greatest achievements of the Basic Law.

Posted in Politics | Tagged , , | Comments Off on “Capital punishment is abolished.”

How to choose a head of state

Posted on 2012-03-17 by Gilbert

In my last post I approved of the German constitution’s design choice to have an apolitical head of state.

Once that design choice is made the question is how to choose that head of state. The obvious first idea is popular election. Some other parliamentary republics do it that way and it is a frequent reform proposal for Germany. Personally, although I want popular elections of the chancellor, I’m not that fond of a popularly elected president. Since he is supposed to be above politics there is nothing to campaign on. Candidates might try character assassination, but that doesn’t really comport with the dignity they should project after their election. So at best we would end up with campaigns devoid of any real content.  A cynic might say that’s not so different from any other electoral campaign, but in this case it would be so by design.

The other extreme is not having elections at all and just making the office hereditary. That’s of course how a parliamentary monarchy works. It’s hard not to admire the stringency of that solution. A person can’t be more removed from democratic party politics than a king.  But I don’t like that solution either. Equality is at the philosophical core of democracy and the head of state is highly symbolic. Making headship of the state a constitutional privilege of a family would basically mean the commonwealth would be denying itself. Also, royal families carry historical baggage that can seriously hinder their integrating function.  The British monarchy, for example, is not all that successful in channeling the loyalty of Catholics.

That essentially leaves us with having the president elected by an other constitutional organ. In Germany that organ is the Federal Convention (Bundesversammlung). Consisting of the members of the Bundestag and an equal number of members elected by the state parliaments, it is only convened for electing presidents. The state delegates are often celebrities reliable enough to vote for their parties candidate but not actively involved in professional politics. There is no debate.  The result has of course been fixed in backroom deals weeks earlier.  For example, the 15. federal convention meeting tomorrow will elect Joachim Gauck on the first ballot. In case you read German, I had a guest post on the genesis of that constitutional arrangement on a German blog when the last president was elected two years ago.

I don’t object to choosing the president by backroom deals. In fact, considering the person holding the office doesn’t matter that much but must seem visibly distant from political conflicts the moment they are elected, this most quiet method of selection is highly desirable.  And having that deal followed by a highly formal election ceremony is probably good for such an intensely symbolical office.

What I do dislike about this system is the low majority requirement. On the first two ballots a candidate needs a majority to be elected. If the first two ballots are unsuccessful,  a plurality suffices on the third one. Mostly this means a partisan backroom deal is sufficient. I would like to raise that to 2/3, so as to necessitate  involvement of minority parties. By making it a matter requiring  fairly broad agreement, I would hope to avoid some of the undignified partisan maneuvering that precedes most Federal Conventions.

Of course if the election required a super-majority there would need to be a plan for situations where it isn’t achieved. And that plan would have to be sufficiently deterrent to avoid triggering it on purpose. I’ll admit some attraction to the medieval solution of starving  the convention until they agree, but that probably would go too far. Perhaps a miselection could simply trigger a new convention.  I gather that is how modern-day American mistrials by jury are dealt with. Or maybe the delegates could face a monetary fine for reaching later ballots with lower majority requirements.

Practically speaking, it’s of course moot, because nobody is interested in following my constitutional advice.

Posted in Politics | Tagged , , | Comments Off on How to choose a head of state

The two-headed Leviathan

Posted on 2012-03-17 by Gilbert

In my last post I argued against the parliamentary system. If I got my will, the absence of a stable majority in parliament would no longer mean a constitutional crisis. That would make the president’s reserve powers dispensable.

But there are still good reasons to keep a purely ceremonial office around. In fact, this is how we understand the office even now. I think many Germans aren’t even aware the president has reserve powers. His actual function in stable times is to be an identification figure above party politics. He signs laws an treaties but has no part in drafting them. Occasionally he pardons criminals but not without the counter-signature of a minister. And sometimes he’ll give a speech about about something wrong with politics, but then he’s careful not to blame anyone specifically. There is a social expectation of everyone paying him respect, and if fact the penal code still has a section dealing with insults to the president. Essentially, the nation is expected to rally behind him, but the system is constructed so as to avoid that allegiance to have any real political content.

This system can easily seem superfluous or even hypocritical and some people want to abolish the office for that reason. I think that’s a bad idea. Loyalty is essentially personal and the fact of the matter is that every political system has a slightly sacrosanct figure symbolically embodying it. In the United states, which is the most prominent nation not to separate the head of state and the head of government, the president reaps some of that benefit. Of course he isn’t anywhere near as immune from criticism as the German president is, but he is also a lot more symbolic of the nation than our chancellor ever could be. And it shows in things like the rally ’round the flag effect. Quite frankly, I find that a little scary. If we have a figure to project patriotism on, as is unavoidable give human nature, then the best we can do is separating that figure from actual decision making. That’s the service the president provides to us and its well worth the cost.

There are, however, clouds on the horizon. The office has been loosing lots of prestige lately. The last president resigned in shame a month ago. The one before him resigned in ridicule two years earlier. And the one before that one clearly got the office in compensation for stepping down as a state prime minister. The president is elected by a brokered convention (I’ll have a separate post on that)  and the maneuvering before that convention is a visible emblem of the party politics he is supposed to be above of. Everyone learned in school he is a figurehead, but not everyone has the subtlety to distinguish that from him being unimportant. So people increasingly see him as a slightly ridiculous relic and there are occasional calls to abolish the office.  If this goes much further, the office will no longer be able to serve its function. I don’t think there is any legislative solution to that problem. Even a written constitution runs largely by unwritten social conventions and fails where people loose the hang of such conventions.

Posted in Politics | Tagged , | Comments Off on The two-headed Leviathan

Nominal and actual power in the parlimentary system

Posted on 2012-03-17 by Gilbert

When the United States or even France elect a president it is big news.  The election of the German president not so much.

That is, of course, because, at least in normal times, the German president doesn’t hold significant power. He has ceremonial precedence and signs lots of important stuff, but the real power is with the chancellor. So before I talk about electing presidents I probably should talk about electing chancellors. As it says in the Basic Law[1]:

Article 63
(1) The Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President.
(2) The person who receives the votes of a majority of the Members of the Bundestag shall be elected. The person elected shall be appointed by the Federal President.
(3) If the person proposed by the Federal President is not elected, the Bundestag may elect a Federal Chancellor within fourteen days after the ballot by the votes of more than one half of its Members.
(4) If no Federal Chancellor is elected within this period, a new election shall take place without delay, in which the person who receives the largest number of votes shall be elected. If the person elected receives the votes of a majority of the Members of the Bundestag, the Federal President must appoint him within seven days after the election. If the person elected does not receive such a majority, then within seven days the Federal President shall either appoint him or dissolve the Bundestag.

[…]

Article 67
(1) The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor by the vote of a majority of its Members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.
(2) Forty-eight hours shall elapse between the motion and the election.

Article 68
(1) If a motion of the Federal Chancellor for a vote of confidence is not supported by the majority of the Members of the Bundestag, the Federal President, upon the proposal of the Federal Chancellor, may dissolve the Bundestag within twenty-one days. The right of dissolution shall lapse as soon as the Bundestag elects another Federal Chancellor by the vote of a majority of its Members.
(2) Forty-eight hours shall elapse between the motion and the vote.

The Bundestag is, of course, our federal parliament. So it’s a slightly modified parliamentary system. If there is a clear majority in parliament it can always install its candidate as chancellor and the president must sign on the dotted line, like it or not. That’s true even if a new majority arises by members changing sides. If no such majority exists the president has some reserve powers.

This is, of course, radically different from the American system, which puts much more stock in the separation of powers. Of course a parliamentary system, too, has a separation of powers, but its effect is weakened.  With the executive power being a removable creature of the legislative power, those powers can’t normally be in conflict. The system is designed to avoid divided government. In addition to being dismissable, the government (parliamentary system speak for cabinet) is also weaker than it would be in a presidential system.  There is, for example, no veto power. Also, members of the government must justify themselves in parliament upon request.

In theory, this sounds like most of the power that would be with the executive department in a presidential system is vested in parliament. If this was how it worked in practice I would like it, because I think power should be spread on as many shoulders as possible. And indeed most Germans do like it and find the vast powers of the American president pretty scary.

But in practice I think it works almost the other way around. A system where the executive department depends on a permanent majority in parliament not so surprisingly tends to produce a permanent majority in parliament.  In fact, if it doesn’t, that is a crisis warranting the use of the president’s slightly scary reserve powers. That, in turn, means party-line votes on everything. Voting against the party line on anything is rare enough to be news-worthy. Back-benchers will toe the party line if they ever again want to run on their party’s ticket. And that kind of control is necessitated by the system, because separating proposals from the people proposing them is impossible by design. Effectively, this turns parliament into a ceremonial body ratifying whatever the leaders of the governing coalition have already decided.

The system still has some checks and balances. Chancellors must give some consideration their power base, because if the Muppets feel they have a better chance of  reelection without their leader they can install a new one without bothering with a general election. And some laws get held up by the states’ participating in legislation through the Bundestag, something I’ll talk about in a separate post on federalism. But Government changes are very rare and the Bundesrat can mostly be dealt with by also involving opposition leaders. So even amendments to the constitution can easily be brokered in backroom deals. By the time the general public hears of the governments intention to legislate the real decisions have already happened and the rest of the legislative process is pretty much predictable.  The epic legislative battles the US Congress engages in over everything important would be impossible in our system.

So, somewhat paradoxically, I dislike the parliamentarian system because it disempowers parliament. I would prefer to have direct popular elections of a chancellor who wouldn’t be responsible to parliament.  I’m not sure how strong a veto, if any, that chancellor or their government should have. The American version is clearly much to strong, but I don’t know how weak a chancellor can be made without ending up effectively dependent on parliament. This opinion is, by the way, very radical; the parliamentary system is utterly uncontroversial in Germany.

Footnotes    (↵ returns to text)

  1. Since I no longer need to refer to repealed parts, I will now cite the Basic Law according to the official translation[pdf].↵
Posted in Politics | Tagged , , | Comments Off on Nominal and actual power in the parlimentary system

Nothing is quite as permanent as a provisional arrangement

Posted on 2012-03-17 by Gilbert

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.↵
Posted in Politics | Tagged , , | 6 Comments

Constitution blogging day in view of tomorrow’s presidential election

Posted on 2012-03-17 by Gilbert

Tomorrow (Sunday, March 18, 2012) the 15th Federal Convention will elect Joachim Gauck president of Germany.

As I already threatened when there were speculations about his predecessors resignation, I’m seizing the opportunity to talk about the German constitution, the Grundgesetz. Today I’ll have several posts about its features compared to other constitutions and what I like and dislike about it.

If you expected a continuation of my series on Fourier analysis that will have to wait until next week.

Here’s an index of the post of this sequence:

1.  This post

2.  Nothing is quite as permanent as a provisional arrangement

3.  Nominal and actual power in the parlimentary system

4.  The two-headed Leviathan

5.  How to choose a head of state

6.  “Capital punishment is abolished.”

7.  Half-hearted federalism

8.  Eternal articles and judical review

9.  No direct democracy

10. Delegation and Europe

11.  Constitution blogging day wrapup

Posted in Politics | Tagged , | Comments Off on Constitution blogging day in view of tomorrow’s presidential election

New series: Fourier analysis and intuition

Posted on 2012-03-03 by Gilbert

Looking at my posts so far, I haven’t been talking about math yet. So today I’m starting a new series on my favorite part of math: Fourier analysis.

Now please my dear readers (both of you), don’t run away!  This isn’t about the formal parts. What I actually want to talk about is how intuitions transfer to abstract calculations we wouldn’t expect them to transfer to. Specifically, the Fourier transform is like a base change and base changes work by projection. If you understood that sentence you’ll probably find the series boring, because it’s all about explaining it.

For those still reading, first I’ll give a big picture explanation of what Fourier analysis is.

fourier

The black triangular graph in this picture is mostly covered by the red graph approximating it. The function plotted in red is the sum of the three functions plotted in blue, all of which are cosines.  With more cosines I would get an even better approximation of the triangle.

It gets interesting because I actually started with the triangular graph and calculated which cosines I had to use to make this picture. Such a calculation can be made for many more functions. Basically if you can plot a function without lifting your pen and it either repeats infinitely or goes to a constant at both sides of your plot, then if you give me enough cosines and sines I can make them add up to a good approximation of that function.  In the limit of infinitely many cosines and sines they add up to the function itself.

One application of this is in string instruments: you probably remember waves can spread on the strings and from them through the air as sounds. But when you pluck a string you actually bring it in a triangular form that doesn’t look wavey at all. You can see the solution in my plot above: The triangle is a sum of lots of cosines that actually do look wavey. And if you look at the plot again, there is one cosine much bigger than the others. (Of much larger amplitude if you want to get pedantic.) That one corresponds to the string’s tone.  The smaller ones correspond to what musicians call overtones.

If that isn’t cool enough, I’ll say with only slight overstatement that quantum mechanics is all made up of applications of  Fourier analysis.

Fine, so lots of functions are sums of sines and cosines. But how do we get at the sines and cosines? You can easily find the formulas on the Internet (and maybe I’ll quote them later in the series) but actually I don’t want to talk about the formulas per se; I want to talk about intuitive analogies they can be understood by.

It will turn out that Fourier analysis is a lot like the geometry of shadows. To explain that I’ll first have to talk about geometry and shadows.

Yep, it’s a cliffhanger.

Index to the series:

1. This post.

2. Vectors.

3. …

Posted in Math | Tagged , | Comments Off on New series: Fourier analysis and intuition

What’s a secular argument?

Posted on 2012-02-13 by Gilbert

Many people believe everyone supporting a policy should have a secular reason to do so. Deferring, for the moment, the question if that is a sensible expectation, I wonder how we decide whether an argument is secular.

I acknowledge one fairly obvious category of non-secular arguments: Something knowable only through a special religious revelation is clearly tied up in the religion that claims that revelation. So, for example, “it’s in the bible” is not a good reason to impose something on people who don’t believe the bible to be God’s word. Now that would be a significant concession if I was a divine command theorist, but the thing is I’m not. I believe most commandments we know through scripture and tradition can also be derived from the natural law. And those not so derivable mainly relate to religious ritual non-Christians don’t participate in anyway.  This is not something I made up yesterday, Catholics have been thinking this long before anyone thought of not having an established religion.

So suppose I say the state should never pay for anyone’s artificial contraception because artificial contraception separates the unitive and the procreative purposes of sex and is thus immoral. Does that count as a secular argument? If so I have no objection to being limited to secular arguments. But I think most people concerned about religious arguments in politics would say it doesn’t. So being based on special revelation is not what people objecting to religious arguments in politics mean by an argument being religious. Rather, they would claim that both objective purposes of human actions and a principle against undermining them are fundamentally religious ideas.  But why would they be religious when the equally non-empirical idea of the equality of all humans counts as wholly secular?

Well, as long as nobody can give me a less cynical definition I think an argument gets called religious if and only if it fulfills the dual conditions of (a) being a part of our civilization’s traditional morality, which of course was Christian and (b) now being controversial.

But then excluding “religious” arguments is a recipe for getting rid of any moral principle we now agree on that should later get controversial.

For example, reactionaries like me believe human life is sacred even if the human doesn’t want to live anymore. Thus no assisted suicide. The modern agnostic liberal quite simply doesn’t believe that and thus decides by the principle of autonomy which is still uncontroversial/secular. Now we reactionaries think this will put us on a slippery slope to killing people against their wills. This again seems far-fetched to agnostic liberals; after all consent is a very obvious bright line. But suppose at some future date a significant minority believes consent isn’t that important and we can alleviate suffering by non-consensual euthanasia. And then they ask us why consent should be morally relevant. Because people have autonomy or dignity or something? – Says who? Because there is a right to life? – Why should there be? Next you’ll tell us it’s because people are created in the true image and likeness of God! So just get out of our way and let us decide by secular principles like pain reduction.  Seriously now, you’re totally allowed to hang on to some residual religious ideas, just keep them out of politics.

Now you might claim the right to life is a secular idea and that is true now. But how can it still be true in a society it is not universally accepted in? If you find a criterion that makes it secular, how do you escape making Catholic moral law theory secular too?

So basically either natural law is a secular argument, or secular arguments can only ever disestablish moral principles and never establish new ones. In the latter case the only end continued secularism can progress to is the Hobbesian state of nature. That surely isn’t a reasonable plan for moral progress.

Posted in Arguments | Tagged , | 2 Comments