Filenews 29 January 2023 - by Andreas Kluth
The U.S. may have the world's oldest intermittent modern democracy, but postwar Germany boasts that its version of democracy — built under American tutelage — is the best fortified and most defensive of democratic institutions (the German word is wehrhaft).
How interesting, then, that both of these democracies now have almost parallel debates about how to deal with the conflict between populism and law, majority democracy and constitutional liberalism. The underlying question is how to maintain any democracy, both in the short and long term.
Threat and vigilance
Everything about the Federal Republic of Germany from 1949 until today was intended to guarantee that it would never fail, as happened in the Weimar Republic in 1933, when the latter succumbed to Adolf Hitler. In recent years, some Germans — wary of American demagogue Donald Trump — have even seen their own post-traumatic hypervigilance as a psychological advantage over the overconfidence of American exceptionalism. That self-confidence has now largely disappeared.
The suspense concerns the Alternative für Deutschland, abbreviated AfD in German. It is a far-right populist party that garners about 20 percent nationwide, but about 30 percent in Thuringia, Saxony and Brandenburg, parts of old East Germany. In this year's elections, the AfD could become the strongest party in the parliaments of these federal states.
The latest round of panic began after a recent report by CORRECTIV, a nonprofit. His undercover reporter entered a hotel in Potsdam where right-wing extremists, neo-Nazis and members of the AfD met to discuss a secret plan to deport millions of people, including foreign and German citizens of foreign origin, if they were considered insufficiently "assimilated." The conspirators' euphemism for mass deportation was "reimmigration."
The echoes of the Nazi era were deafening. One suggestion at the Potsdam rally was to resettle all these "ethnically unsatisfactory" Germans in a "model state" in North Africa. In 1940, the Nazis considered deporting European Jews to Madagascar. Even the scene was eerie: the Potsdam hotel is a bike ride away from the villa where the 1942 Wannsee Conference took place, in which the Nazis sealed the final details of the Final Solution – the Holocaust.
German society reacted to the revelations as any healthy democracy should. Hundreds of thousands of people have taken to the streets to protest against the AfD. A placard that particularly touched me when I saw it on social media was held by a young woman: "Now we will finally know how we would act in place of our great-grandparents."
Antibodies
Such spontaneous resistance represents antibodies to the immune system of postwar German democracy. These include provisions in its Basic Law or Constitution to prohibit private individuals from holding public office, withhold public funding from parties, and even ban parties outright. The debate in Germany is about which of these measures might be appropriate for the AfD.
The obstacles to a ban are great. Germany's highest court has outlawed only two parties, both in the 1950s. One was a Stalinist organization, the other a copy of the NSDAP (as the Nazi party was officially called). More recent attempts to outlaw a neo-Nazi party formerly called NPD and now Heimat failed in 2017. This is because a party must prove itself to be "aggressively" opposed to the liberal and democratic foundations of the republican polity and also capable of achieving its goals. The tiny NPD/Heimat did not meet the last condition for its ban.
The AfD is big enough to pose a threat. Germany's domestic intelligence services have labelled three of the AfD's regional branches "extremist" and "hostile to the constitution." But the party's platform carefully avoids language that a court would consider unconstitutional and has so far skilfully communicated its extremist messages in an indirect and passive manner. So a ban can fail.
An alternative is to invoke a different article of the constitution, amended in 2017 to reduce the burden of proof if the goal is only to cut off a party's public funding. However, this clause was written with NPD/Heimat in mind, whose public funding the supreme court finally cut off this week. The AfD could get away with that too.
A third option is to restrict the rights of specific individuals, which the Constitution allows in certain circumstances. The first person that comes to mind – and the target of a public appeal to that effect – is Björn Höcke, chairman of the AfD in Thuringia's state parliament and one of the party's most extremist leaders. Even without ruling on the entire AfD, the court could ban Höcke and his ilk from holding public office.
Political, not legal issue
There are obvious differences between the German situation and the American drama during the current election year. Höcke is not Trump, the AfD is not MAGA, and the German parliamentary system does not have an Electoral College like the US.
But the similarities are still striking. Like those attending that Potsdam meeting, Trump and his political tribe have plans for mass deportations. The former US president dreams of "retaliation" against his domestic enemies and plays rhetorical games with the question of whether he will become a "dictator" if he is re-elected to the country's highest office. Above all, he incited a mob in 2021 to move violently to prevent the peaceful transfer of power to his successor as president. Even in addition to his many other legal problems, this act of sedition, according to Section 3 of the 14th Amendment to the U.S. Constitution, should prohibit him from holding any state office again.
But is it wise to continue hearing similar cases in the highest courts of Germany and the USA? Here the controversies go beyond the legal framework and enter the realm of politics.
A German judicial process would take years, during which the AfD would play the victim and pretend that what is at stake is not its contempt for the constitution but its freedom of speech. Its proponents would feel ostracized from society and could dive deeper into their conspiracy theories. Even if the AfD were banned, its voters would not disappear and might go underground and radicalize, as happened with a group called the Reichsbuerger, before its plot was revealed.
Something similar could happen if Trump were barred from running under the 14th Amendment or some combination of criminal convictions. He and his supporters would rely on their "Big Lie," the myth that the election of not only 2020 but also 2024 was "stolen." Remember that "Big Lie" as a concept comes from Hitler's Mein Kampf. The nation would be divided and its institutions would suffer a heavy blow.
This, indeed, is the paradox of institutions and democracies in general. Whether they stem from written constitutions as in the US and Germany or from unwritten ones as in the UK and Israel, they are only as resilient as the people who give them life – judges, lawyers, journalists, state officials and civil servants, voters. If I had to decide, I would say yes, move the court cases, both in the US and in Germany. In any case, however, there is no escape through any legal hatch from ourselves.
As one philosopher observed when the First French Republic began eating its children, "every nation receives the government it deserves." This is true today from the US to Germany and from Israel to Poland, India, Brazil and every other democracy currently afflicted by populism. Even when others don't, we must keep our political discourse civilized, respect the truth, tolerate each other, honor institutions, and of course vote. This is what Benjamin Franklin meant when he said that we have democracy if we can maintain it.
Performance – Editing – Text Selection (2019-2024): G.D. Pavlopoulos
