The Peculiar Path

A Bavarian legal scholar who has been attached to the U.N. Secretariat and to the E.U. Commission in Brussels, Josef Schüsslburner has disagreements with the German Basic Law, enacted in 1949 as an interim constitution for the West German Federal Republic.  The author describes this guiding document and the circumstances that helped shape it as “democracy’s peculiar path for the Germans.”  It is a path that mandates an “order of control” (Herrschaftsordnung) that leaves little room for real constitutional freedom or for any meaningful practice of popular government.

While the Basic Law (Article 146) claims to be only provisional and, in fact, subject to replacement by a new, permanent constitution once Germany is reunified, its origins determined both its later development and the virtual impossibility of superseding it.  The law came out of Germany’s defeat and demoralization and has special features that her occupiers inflicted on their subjects.  These include a federal court for interpreting the Basic Law (Bundesverfassungsgericht) and the federal and provincial agencies known as the Verfassungsschutz, which were organized in 1949, at the command of the Allied Occupation, to document “extremist” threats to German democracy.  Such institutions interpret the constitutionally guaranteed right to make fundamental changes in the Basic Law as an antidemocratic...

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