Samuel Miner (#5: The Rule of Law)

(Institute for Contemporary History, Munich)

I’ll keep this short by reading comments. As this is a gathering of historians, I’d like to start with a plea. Courts are an essential part of the current struggle over the meaning of democracy and as such it is a central task of contemporary history to research the history and role of courts in democracies. In the United States, Poland, Hungary, Israel and across the world, courts have become the first battleground between populist authoritarian governments and the established traditions of constitutional democracies. Since WWII there has been a proliferation of supreme courts and along with it an increased judicialization of politics which has received attention from political scientists and jurists but is only belatedly the object of historical analysis.

In Germany, the recent electoral success of Alternatives for Germany (AfD) and the conclusions of the “Office for the Protection of the Constitution” in a report that the AfD has “confirmed right-wing extremist tendencies” is just the latest in a long and growing transatlantic dialogue about the need for courts to fight the emboldened far-right. Germany provides a powerful model for opponents of the Trump administration who want to see him face legal consequences for his unconstitutional acts. Historically, this model came from two of the major novelties of the 1949 West German constitution. These were to create a Federal Constitutional Court empowered with broad powers of judicial review and a web of legal institutions designed to combat “constitutional enemies” of the “Free Democratic Basic Order.” These are both pillars of Germany’s “militant democracy.” The Constitutional Court should decide in the end if parties are incompatible with the constitution and is therefore understood to be the “guardian of the constitution.” It banned two parties in the 1950s, the KPD and the SRP. Experience suggests that it sets a very high bar for party banning cases. What is unique as opposed to earlier Cold War discussions is that in the United States and Germany this is a view of political progressives.

The major point of my own research into the origins of the German Federal Constitutional Court and militant democracy was that these legal-constitutional developments were deeply entrenched in German national history, not a copy of American constitutionalism or an export to Germany through the Allied occupation. They were also not just the response of a country which had once tried democracy in Weimar but collapsed dictatorship after the electoral rise of the National Socialists. Rather, they were also the result of twelve years of dictatorship by popular consent, in which large portions of society supported or turned a blind eye to persecution and the genocide of European Jewry, and which fought to the bitter to defend that regime without a major resistance movement. In the German-Jewish emigre Ernst Fraenkel’s still essential analysis of Nazi Germany, the Nazi regime was a “dual state” in which pseudo-legality existed alongside the extra-legal measures. Judicial review by a Supreme Court was a way to comb through Nazi legislation still used in the postwar to defend war criminals, and in the postwar militant democracy before it became clouded by Cold War logic of the 1950s was the innovation of antifascists who wanted to extend denazification after it fell apart early in the Allied occupation.

In one important sense, I think the crisis of American democracy does reflect that postwar change in West Germany. Twice the American electorate has voted for Donald Trump, and at least in the second election he won the popular vote with 77 million voters. He has a slim majority in both houses of Congress. The hope that the judiciary might ward off some of Donald Trump’s most authoritarian measures is of course grounded in the belief that the rule of law means courts defending against violations of statutes and the constitution. It is also, however, the reflection of a profound fear that a growing number of Americans are lost to democracy and therefore non-representative institutions such as courts will save us from the electorate. Frank Biess called the history of the Federal Republic a history of Angst. For very understandable reasons, liberals in the United States view their fellow citizens with a great deal of Angst too. Just as militant democracy was a solution to a problem of German history deeply rooted in German problems, so too I hope that American liberals can find a solution to the very American problem of the imperial presidency with electoral victories and congressional assertion.

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