How Germany built a constitution against its own history

What the Basic Law was designed to prevent

The Basic Law came into force on 23 May 1949 and reads throughout as an argument with the constitution that preceded it. Almost every distinctive feature answers a specific way the Weimar Republic failed, and the drafters said so.

Article 1 opens with human dignity being inviolable and makes respecting and protecting it the duty of all state authority, then declares that the basic rights following bind the legislature, the executive and the judiciary as directly applicable law. That last clause is the innovation: rights are not aspirations for the legislature to implement but law that binds it immediately.

Article 20 states that Germany is a democratic and social federal state, that all state authority derives from the people, that the legislature is bound by the constitutional order and the executive and judiciary by law and justice, and that all Germans have the right to resist any person seeking to abolish that constitutional order if no other remedy is available.

Article 79 then closes the door behind both. Amendments require two thirds of the Bundestag and two thirds of the Bundesrat, and any amendment affecting the division of the federation into states, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 is inadmissible. Human dignity, democracy, the social state, federalism and the rule of law are outside the reach of any majority.

How a chancellor is chosen and removed

The chancellor is elected by the Bundestag without debate, on the proposal of the federal president, and the person receiving the votes of a majority of members is elected and appointed. If the president's nominee fails, the Bundestag has fourteen days to elect a chancellor by a majority of its members on its own initiative. If that period passes without a result, a further ballot follows immediately in which whoever receives the most votes is elected, and the president then either appoints them or dissolves the Bundestag. Removal works only one way. Under Article 67 the Bundestag may express its lack of confidence in the chancellor only by electing a successor by a majority of its members and requesting the president to dismiss the incumbent, and the president must comply. Forty-eight hours must elapse between the motion and the election.

This is the constructive vote of no confidence and it is the single most copied feature of the Basic Law. A parliament that can agree only on what it opposes cannot bring a government down, which removes the mechanism by which Weimar majorities of the far left and far right voted out chancellor after chancellor without ever agreeing on a replacement.

Article 68 provides the other direction. If a chancellor's own motion of confidence fails to win a majority of members, the president may dissolve the Bundestag within twenty-one days on the chancellor's proposal, and the right lapses as soon as the Bundestag elects another chancellor. That route has been used to engineer early elections, which is not what it was written for.

How the Bundestag is elected

Article 38 provides that members are elected in general, direct, free, equal and secret elections, that they represent the whole people, are not bound by orders or instructions and are responsible only to their conscience, and that anyone over eighteen may vote. The details are left to federal law, which is why the electoral system has been reformed repeatedly without touching the constitution.

Each voter casts two votes. The first chooses a constituency candidate, the second a party, and the second is decisive: it determines the relative strength of the parties in the chamber and therefore which coalition can elect a chancellor. Constituency seats exist so that every region is represented by someone accountable to it.

A reform changed the relationship between the two. A candidate who wins a constituency now takes the seat only if their party's share of second votes in that federal state covers it, which caps the size of the chamber. Previously, constituency wins in excess of a party's proportional entitlement generated extra seats and compensating seats for other parties, and the Bundestag had grown well beyond its nominal size as a result. The threshold is the other filter. A party entering the Bundestag must generally win more than 5% of second votes nationwide, with exceptions for parties representing national minorities, and a party that wins a set number of constituencies has historically been able to enter regardless. Both the 5% clause and the constituency exception derive from the same reasoning as the constructive vote of no confidence: a fragmented parliament is treated as a danger rather than as a faithful mirror.

What the Basic Law asks of parties

Article 21 treats political parties as constitutional organs rather than as private associations. It provides that they participate in forming the political will of the people, that they may be freely established, that their internal organisation must conform to democratic principles, and that they must publicly account for their assets and for the sources and use of their funds.

Each of those requirements is doing work. A party that organises itself undemocratically is in breach of the constitution regardless of what it says in public, and the transparency obligation on funding is constitutional rather than statutory, so it cannot be softened by an ordinary majority.

The consequence is a party system that is regulated, publicly financed and legally accountable in a way that has no equivalent in the English-speaking democracies. Membership, internal elections, candidate selection and accounts all sit inside a legal framework, and disputes about them reach the courts.

The provision on excluding a party from state financing is newer than the ban provision and answers a practical problem with it. A party can be too dangerous to fund and not dangerous enough to ban, and before the financing clause existed the state had only two options: doing nothing, or attempting a prohibition. The financing route gives a proportionate answer, decided by the same court on the same evidence, and the wording of the two paragraphs differs deliberately: a party is unconstitutional if it seeks to abolish the free democratic basic order, and loses funding if it is merely oriented towards doing so.

What the states actually control

Federalism in Germany is not a delegation from the centre. Article 30 provides that except as otherwise provided or permitted by the Basic Law, the exercise of state powers and the discharge of state functions is a matter for the states. The federation holds the competences the constitution gives it and the states hold the remainder, which is the reverse of the arrangement in most unitary countries.

Article 28 requires the constitutional order of each state to conform to republican, democratic and social principles under the rule of law, and requires representation by elected bodies in every state, county and municipality. It also guarantees municipalities the right to regulate all local affairs on their own responsibility within the limits of the law, which gives local government a constitutional footing rather than a statutory one.

The Bundesrat is where the states meet federal legislation. It is composed of members of the state governments rather than of separately elected representatives, so state executives sit in the national legislative process directly, and a substantial category of federal law cannot pass without its consent.

The practical consequence is that education, culture, policing and broadcasting are state matters, and that a federal government with a Bundestag majority may still be unable to legislate if the state governments are held by its opponents. Divided control between the two chambers is a normal condition of German politics rather than a crisis.

What the federal president is for

A federal president is head of state, elected without debate by a Federal Convention consisting of the members of the Bundestag and an equal number of members chosen by the state parliaments on a proportional basis. Any German entitled to vote in Bundestag elections and aged at least forty may be elected, the term is five years, and consecutive re-election is permitted only once. The office is deliberately weak, and the weakness is another lesson taken from Weimar. What remains is procedural and occasionally decisive. The president proposes a chancellor for the Bundestag to elect, appoints and dismisses ministers on the chancellor's proposal, and certifies laws for promulgation in the Federal Law Gazette after they have been countersigned. Certification is the last step before a law exists, performed by an office with no stake in the legislation, and the Basic Law places it in the president's hands rather than the chancellor's for exactly that reason.

The president's other real moment comes in a hung parliament. If the Bundestag cannot elect a chancellor by a majority of its members, the president chooses between appointing a minority chancellor and dissolving the chamber, and that is a political judgement no rule can make in advance.

Most presidential acts require the countersignature of the chancellor or the competent minister to be valid, which is the mechanism that keeps the office inside the government's control. The exceptions are the ones that matter: appointing and dismissing the chancellor, and dissolving the Bundestag, need no countersignature at all. The rest of the role is representational, and German presidents have used it to say things governments cannot.

Who guards the constitution

The Federal Constitutional Court is a federal court that is autonomous and independent of all other constitutional organs. It has sixteen justices divided into two senates of eight, with each senate forming chambers of three, and it sits in Karlsruhe rather than in the capital.

The appointment rules are designed to force agreement. Half the justices are elected by the Bundestag and half by the Bundesrat, the two bodies take turns electing the president and vice-president, and a two-thirds majority is required in both, which means no governing majority can staff the court alone. Terms are twelve years and end no later than the month a justice turns sixty-eight, and there is no reappointment. At least three justices in each senate must be drawn from the supreme federal courts.

The court's reach is unusually wide. It rules on the constitutionality of legislation, on disputes between constitutional organs and between the federation and the states, and on individual constitutional complaints, which allow any person who believes a public authority has infringed their basic rights to bring the case directly. It also decides, under Article 21, whether a political party is unconstitutional and whether a party should be excluded from state financing. That last power is the most distinctive and the least used. Article 21 declares unconstitutional any party that by its aims or the behaviour of its adherents seeks to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic, and gives the court alone the authority to rule on it. A constitution written after a party had dismantled a democracy from inside it provided a mechanism for banning parties, and then made banning one procedurally very hard.

Where sovereignty is shared

Article 23 commits Germany to participating in the development of a European Union committed to democratic, social and federal principles, to the rule of law and to subsidiarity, and providing a level of basic rights protection essentially comparable to the Basic Law's own. The conditions are the point: European integration is authorised by the constitution and bounded by it.

The article also gives parliament instruments. The Bundestag and Bundesrat may bring an action before the Court of Justice of the European Union challenging a European legislative act for infringing subsidiarity, and the Bundestag is obliged to bring one on the application of a defined minority of its members. The federal government must inform both chambers of European matters comprehensively and as early as possible, must give the Bundestag the opportunity to state its position before participating in European legislation, and must take that position into account in negotiations.

Germany joined the United Nations on 18 September 1973, NATO on 9 May 1955, the European Communities at their foundation, the Council of Europe in 1950, the OECD in 1961 and the Schengen area in 1995, and it uses the euro. The combination of a constitutionally bounded commitment to Europe and a constitutional court willing to police the boundary has made German constitutional jurisprudence a factor in European integration that no other member state's is. Germany: economy sets out what euro membership does to German policy.