Eric Voegelin and the Constitution of the Federal Republic of Germany at 75

Introduction[1]

The constitution of the Federal Republic of Germany was adopted on May 23, 1949, about four years after the end of World War II.[2] Its official designation is not “Constitution”, but “Basic Law” (Grundgesetz). Prior to the Basic Law there were two attempts to create a democratic constitution in Germany, the Constitution of 1849, the

so called St. Paul’s Church Constitution (Paulskirchenverfassung), and the constitution of 1919, the Constitution of the Weimar Republic. For different reasons, both were doomed to failure.[3] The Basic Law of 1949 however turned out to be a success and is considered by most citizens to be the best constitution Germany has ever had (including various “leges fundamentales” (basic laws) of the Middle Ages and the modern age). The following pages contain an outline of the most important contents of the Basic Law, on the one hand because Germany celebrates currently the entry into force of the Basic Law 75 years ago, and on the other hand because Eric Voegelin was also familiar with the German constitution, occasionally referred to it, and was in Munich on its tenth and twentieth anniversaries.

Historical background

The Basic Law was drawn up in the years 1948-1949.  Right after the end of the Second World War Germany was divided into four occupation zones administered by the United States, Great Britain, France, and the Soviet Union. In the first months and years after the war political structures in the eleven Western Länder (= states) began to be established “from the bottom up”. This democratic development, the central geographical position of Germany in Europe, and the expansionist ambitions of the Soviet Union prompted the three Western Allies to make Germany an integral part of the Western hemisphere on the basis of a new constitution. The first step was a convention on the picturesque island in Lake Chiemsee in Upper Bavaria, which in just 14 days (Aug. 10.-23.1948) drafted central features of the later constitution. On this basis, a so-called Parliamentary Council elaborated the Basic Law from Sept. 1948 to May 1949 in Bonn (Germany’s seat of government from 1949-1999).[4]

The Herrenchiemsee draft contains a number of important guidelines for the future constitution, above all the guiding principle in Article 1 para. 1: “The state exists for the sake of man, not man for the sake of the state”. This central position of the human being was to be incorporated into the Basic Law and determines until today the entire state system. Article 1 para I Basic Law picks up on this idea and restates it in a different formulation. Other important provisions of the Herrenchiemsee draft regard the federal structure, the two-chamber parliament, the parliamentary form of government, the figurehead presidency, the eternal guarantee for human dignity, the lack of direct democratic elements on the federal level, and the protection of these principles against

enemies of the Republic. These characteristics are not only a response to national socialism, but reach far back into the 19th century: the Paulskirche Constitution of 1849 was not only intended to create the first nation state on German soil (which was founded in 1871), it also contained an impressive catalog of basic rights, especially in Articles 130-189, whose limitability was defined as follows: “No constitution or legislation of a single German state shall ever be able to abolish or restrict them.” Even though this constitution never came into force, many of its demands were incorporated into the Basic Law of 1949.[5]

The Weimar Constitution was just as modern and progressive as the Paulskirche Constitution. After the end of the First World War the main intention was to bring peace and order to the German state. The politicians of the various factions were convinced of the need to give the new polity a strong leadership. Thus, the Reich President was given the (fateful) right to dissolve the Reichstag and to appoint and dismiss the Reich Chancellor and, at his suggestion, the Reich Ministers. The catalog of basic rights in Articles 109-165 was evidently of great importance, because their main function consists in protecting its citizens from the state. These two elements, a strong, capable head of state and the catalog of basic rights, quickly lost their impact in the early 1930s. In the midst of political unrest (Hyperinflation 1923, Great Depression 1929, mass unemployment 1930ff.) the exceptional power of the Reich President helped the National Socialists to come to power, and less than a month after seizing power the new government succeeded in suspending the most important basic rights. The power of the state increased; the rights of the citizens decreased. The path to a totalitarian state was paved.

Even if the Basic Law of 1949 draws on the Paulskirche Constitution of 1849, it is also a reaction to the weaknesses of the Weimar Constitution which permitted its systematic abuse and final destruction in the few months after January 1933.

The basic structure and the “basic rights”

The table of contents of the Basic Law shows 14 chapters. It contains chapters on basic rights, the relationship between the Federal Government and the Länder, the Bundestag (Federal Parliament), the Bundesrat (Federal Council), the Federal President, the Federal Government, legislation, etc. At its core, the Basic Law consists of two separate elements: the basic rights on the one side and the state organization on the other. The basic rights rights are mainly laid down in Articles 1-19, the organization of the state in Articles 20-146. It was the intention of the founders of the constitution that basic rights should “dominate” the state. Whereas in most constitutions, basic rights are subordinate in terms of value and sequence to the organization of the state, in the Basic law they should take precedence over all state action. And just as basic rights were to form the basis for the whole state, the central position of human beings and their dignity were to form the foundation of basic rights. The three elements of 1. human dignity, 2. basic rights, and 3. state organization build on each other. The first sentence in Article 1 para. 1 Basic Law therefore reads: “Human dignity shall be inviolable.”[6] Human dignity should be the starting point, the middle point and the end point of all state action. Basically, the complete existence of the state and all concrete state actions are derived from its will to respect and protect human dignity. Accordingly, sentence 2 of Article 1 of the Basic Law reads: “To respect and protect it (= human dignity, HB) shall be the duty of all state authority.”

It is obvious that the German constitution does not limit human dignity to Germans or people living in Germany. Human dignity is innate, it is a universal and “pro-state” value; the state cannot bestow dignity, it can only recognize and protect it, and above all it cannot deprive anyone of it. According to the German understanding, it applies to all people all over the world from birth to death, it takes effect before birth (protection of the “nasciturus”, i.e. “prenatally”) and extend beyond death (“post mortem”). Paragraph 2 of Article 1 of the Basic Law (henceforth: BL) is worded accordingly: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and justice in the world.”

A look at the history of the concept of human dignity reveals that the term has been in use for centuries. A religious justification can be found at the beginning of the Old Testament, when it is said that God created man in his image: “So God created humankind in his image, in the image of God he created them; male and female he created them.” (Genesis I, 27) The thesis of man as “imago Dei” determines the thinking in Christianity over the centuries. A different understanding can be found in the Roman philosopher and politician Cicero, who explains the term “dignitas” in De officiis (44 BC) by referring to the external and accidental social position on the one hand, but also by emphasizing the unchangeable inner quality of man on the other:

“It is part of any study of dutiful action to always bear in mind how much the nature of man surpasses that of cattle and other animals; the latter feel nothing but pleasure, and they throw themselves on this with all their strength, but the spirit of man grows through learning and thinking, he is always exploring something, acting or being guided by the pleasure of singing and listening. … From this we see that bodily pleasure is not worthy enough of man’s exalted position and must be spurned and rejected, … if we want to consider how superior a position and dignity lies in our nature, then we will realize how shameful it is to let ourselves drift into pleasure-seeking and to live in a pampered and soft way, and how honorable, on the other hand, to live sparingly, abstinently, strictly and soberly.” (1. book, 105-106)

Thomas Aquinas in the High Middle Ages justified the dignity of man through his likeness to God and coined the remarkable sentence that “man is the goal of all creation” (Summa contra gentiles, 1259-64, 3. book, ch. 22).[7] In the Italian Renaissance, Giovanni Pico della Mirandola emphasized in his work De hominis dignitate (1486) that the dignity of man is based on his ability to shape life as “plastes et fictor”. Man creates his own profile, which can lead him to the highest forms of life, but also to a relegation to an animal existence. In this ability consists his dignity. Immanuel Kant, who filled the concept of human dignity with new content at the end of the 18th century, represents for many the high point in the theoretical justification of human dignity. In his treatise on Groundwork of the Metaphysics of Morals (1785)[8] he states:

“In the realm of purpose, everything has either a price or a dignity. What has a price can also be replaced by something else as an equivalent; what, on the other hand, is elevated above all prices, with no equivalent, has a dignity.”

The Kantian view is that human dignity is an innate worth or status that we don’t earn and cannot forfeit, which we have by virtue of our rational autonomy. In order to explain the term dignity in Kant’s thought, it is helpful to turn to the second formulation of the so called categorical imperative, the “humanity formula”. In Kant’s (a bit outmoded) words it sounds like this: “Act so as to treat humanity, whether in your own person or in that of another, at all times also as an end, and not only as a means.” Kant was, of course, aware that people are usually means to the realization of a wide variety of purposes, he himself being as professor at the University of Königsberg also a “means to an end”, but he saw and emphasized that people are far more than just rationally serving a purpose: they are ends in themselves, have the gift of autonomy beyond all purposes and take part, beyond the “mundus sensibilis” in a higher order, the “mundus intelligibilis”.  As ends in themselves, human beings are not allowed to be instrumentalized in existential situations.

The definition of the concept of human dignity in the Basic Law aims precisely in the direction of Kant’s definition: the concept of human dignity characterizes man as a spiritual and moral being who, in freedom and self-awareness, is able to determine himself and influence his environment. Above all, human beings must not be subjected to treatment that degrades them to mere objects. The best-known interpretation of the term “human dignity” in the BL stems from the constitutional law professor Günter Dürig, who developed the so-called “object formula”, which was formulated in 1957 and is still groundbreaking for the concept today. According to this, the dignity of a person is violated “if the concrete person is degraded to an object, to a mere means, to a justifiable quantity”.[9] Obviously, the so-called object formula is linked to Kant’s prohibition of instrumentalization, and the Federal Constitutional Court has indeed referred to the o

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