In my art article “Texts on the World Financial Crisis” and other blog articles, I already enthused about our courageous and almost lusty Bavarian Constitution.
However, the Bavarian Constitution is subsidiary to the Basic Constitutional Law of Germany. To be sure, Bavaria never officially became part of the Federal Republic of Germany – but it can be assumed that, over the last few decades, the Free State of Bavaria conducted itself in a way that implied its consent to being part of the FRG.
Yes, the Bavarian Constitution is my personal favourite – I rather like it. Now I also read the Basic Constitutional Law of Germany (Grundgesetz) and I would recommend that you all, too, read it.
And I find it truly imperfect. Here are some totally random examples I am not at all enthusiastic about. Let us begin with Article 8.
(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission
(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law
Comment: Something is guaranteed. But, naturally, you can restrict it. All you have to do is introduce a law.
(1) The privacy of correspondence, posts and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature
Comment: Something cannot be violated. But, naturally, you can restrict it. All you have to do is introduce a new law.
(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
(2) Property entails obligations. Its use shall also serve the public good.
(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.
Comment: Something is guaranteed. But – all you have to do is institute a law; then you can restrict everything. You may even dispossess someone. But section (2) is even worse. Can you get less committed if you want to say that someone who owns something not only has rights, but also obligations? And can you be more slack than this if you want to say that something should also serve the public good.
The entire text continues in this way. It is the same with Art 13 (inviolability of the home), Art 16 (right of asylum) or Art 17a (restriction of rights in military or alternative service). All the time, you read that everything is allowed and then again restricted.
I found this article particularly painful:
(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.
(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.
Comment: I wonder if all that is left of these nice concepts is words that have totally lost their value. Who has all the power today? Well, it definitely is not the people. Instead, an oligarchy of parties and institutions, united in an ill-omened alliance with the truly powerful interest associations and lobbyists of capital and gamblers, has all the power. Through their federation, they mutually increase their power. And because it cannot be done without humans and said humans are more a hindrance than anything else, humans are manipulated and indoctrinated to serve the right purpose.
Isn’t it funny that we have the right to oppose in Art (4); even armed opposition as an ultima ratio is not totally out of the question if you follow the words verbatim…
As I see it, the legal position is unambiguous. Germany was obliged to give itself a new constitution years ago. But then, the powerful persons do not seem to care a lot about law. Consequently, no German Constitution seems to be upcoming.
And I am not sure if this should make me sad or happy. To be sure, our Basic Constitutional Law is not optimal. And, of course, in these times, we need a very strong, courageous and happy constitution – with a wide social consensus for the future, freedom, humanity and education.
Except – I am sure a new constitution, too, would be written by the lobbyists. See TTIP. Democrats would have no chance.
Instead of writing a new constitution, it might be a good idea to protect what remains of our Basic Constitution against even more attacks. Regardless of where these attacks originate. A turbo-capitalist and neo-liberal constitution, written by Parties & Germany AG and sold through populism would certainly be a great misfortune
(Translated by EG)
The picture of the flag is common property. Here is the Wikipedia Link.