Ute Frevert (#5: The Rule of Law)

(Max Weber Stiftung)

In October 2024 – shortly before the presidential elections – John Kelly met with a reporter from the New York Times and talked tacheles. Kelly served as the White House Chief of Staff for Donald Trump between 2017 and 2019, before he fell out of favor and was discharged. Five years later, he broke his silence about his former boss, whom he accused of not caring much about the constitution or the rule of law. I quote from the NYT: “Mr. Kelly said that in the first few days of working for Mr. Trump…, he had to explain to the president that top government officials like himself had taken an oath to the Constitution and would place that oath over personal loyalty. Mr. Kelly said Mr. Trump pressed him about that pledge and seemed to have no appreciation that top aides were supposed to put their pledge to the Constitution — and, by extension, the rule of law — above all else.” This, according to Kelly, “was a new concept for him, and I don’t think it’s one he ever totally accepted.” Personal loyalty, in contrast, was “virtually everything to him”.

This reflects a lot of what we have seen since January 2025. We have seen a president willing to go after anybody whose personal loyalty is under suspicion. We have also seen a president who has been governing by decree to an extent that seems designed to wear out his opponents. The sheer number of those decrees is exhaustive and exhausting; challenging them as illegal and unconstitutional demands an effort that appears overwhelming. Still, a lot of them have been legally challenged, which puts the judiciary at the forefront of political action. The jury is still out – will courts answer to what many see as an overstepping of presidential powers? Will they safeguard the constitution against a president who does not seem to care for or about it? Will they defend civil liberties and constitutional rights against a president set on curtailing those rights and doing everything to install autocratic rule?

I am not an expert on the American constitution. But I do know about the reputation of the “founding fathers” who brought that constitution into being. And I always wondered why the German “founding fathers and mothers” who, in 1948/49, worked on a constitution for West Germany, have never even come close to enjoying such a reputation. Researching those issues, I came across the work of German-Jewish legal scholar Karl Loewenstein. He emigrated to the US in 1933 and taught constitutional law and political science at Yale and Amherst. In 1945, he became a legal consultant for the Allied Military Government in Occupied Germany; as such he was charged with investigating and arresting Carl Schmitt, whom he saw as a chief ideologist for totalitarian and fascist movements.

Loewenstein also wrote widely about constitutional matters. For him, the US served as a paradigm of what he called “constitutional feelings”, Verfassungsgefühle. American citizens loved the constitution and harbored intense feelings of attachment, commitment and compliance towards it. In the US, he said, the constitution still retained elements of the magic moment when it was drafted and proclaimed. Everybody believed in and cherished the constitution as the foundational document of American democracy. It garnered pride and personal allegiance. At times, all this approached a kind of mythology that was a bit too much for the sober, German-raised Loewenstein. Nevertheless, he stated and admired the profoundly integrative effect of those constitutional feelings – an effect that he saw missing in Germany: both in the Weimar Republic where he had spent his formative years, and in the new Federal Republic that he came to know in the 1950s.

Meanwhile, Germany’s basic law has made advances on people’s hearts. Since the 1970s, more and more citizens have put their trust in the constitution, mostly in its civil rights section, which has been accepted as a general normative order. This is partly due to the fact that the Constitutional Court has been a major factor in expanding those rights; furthermore, it has, time and again, held both parliament and government to account in cases when they ruled against the constitution.

Although only 250,000 constitutional complaints have in fact reached the court since 1951, Germans share a feeling that “Karlsruhe” (the city where the court sits) is there for them and their concerns. But they have also learnt to use the basic law as a political instrument and defend it against those who seek to destroy its normative order. Last year, after learning about a secret meeting among extreme right-wingers and their program of weakening the Constitutional Court and promoting “remigration”, four million people of different political leanings took to the streets, over a stretch of several months and all over the country.

Is there a lesson to be learnt here? Defending the constitution and the rule of law is, first and foremost, the task of the judicial system. But citizens are also well advised to practice their constitutional feelings and exercise them in open protest. 

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