Conferring democratic legitimacy to the Basic Law
The lack of a real active democratic subject in Western Germany's historical constitution-making process has forced the focus on the reconstruction of the people's consent within the constituted power (Mollers, 2007, p.
98). German doctrine, as we have seen that also political theorists such as Habermas held,Constituent power without “We the People” 153 focuses on the vision according to which a Constitution is more a matter of future than a matter of memory, somehow recognizing thus that a degree of memorydistortion is needed in order to enforce the constitutional order. In this way, Kirchhof (2004, p. 273) for instance, stated that:
It is not the past, but the future ofconstitutional law the issue ofa constitution.
The basic ideas of such “reconstruction” theory within the German version are, on the one hand, that democratic legitimacy is seen within the ordinary democratic constitutional procedures (Bockenforde, 1992a, p. 105) and, on the other hand, that the German fundamental constitutional discourse has been de-politicized, and put into the form of constitutional interpretation beyond democratic theory (Mollers, 2007, p. 97). Regarding the latter strategy, German doctrine has centred its analysis in the constitutional conflicts before the Constitutional Court: the constitutional judicial review of legislation (and particularly, the individual complaints lodged to the Federal Constitutional Court) emerges as the occasion to transform a constitutional significance through an act ofpolitical participation (Dietze, 1960, p. 138; Markovits, 2008, p. 1337). Granting the judiciary the power to interpret the meaning of some constitutional concepts (such as those stemming from human dignity or sprinkled within the articles in which fundamental rights are recognized) was predictable taking into account that they had been codified against amendment (see Albert, 2019, p.
53). In this fashion may be understood some theoretical proposals, such as the one represented by Peter Haberle (1996) whose theory of the open society of constitutional interpreters is partially an attempt to organize the reconfiguration of constitutional concepts through the dialogue that several agents within the society hold with the Bundesverfassungsgericht in the present. But, at the end of the day, interpretation through the conflicts that are developed before the judiciary cannot subvert the constitutional meanings and, thus, the objection according to which there is a limit composed by core decisions that had not been adopted by the citizenry, still subsists.Already at the beginning of the regime of the Bonn Basic Law, a scholar such as Schneider (1954) suggested that the postwar German constitutional framework gained democratic legitimacy through the high voter turnout in the regular elections to the Bundestag that took place shortly after the passing of the Basic Law. According to Schneider, 78 per cent of those Western Germans entitled to vote cast their votes in the 1949 first Bundestag elections and thus indicated their willingness to accept the new system.21 Furthermore, wrote Schneider, only 13.2 per cent of the eligible voters voted for parties which, like the Communists, the Centre Party, the Bavarian Party, and the German Party, rejected the Basic Law for one reason or another (on that point see also Kloepfer, 1983, p. 59). The argument according to which the German Basic Law already enjoyed a popular endorsement through every national election since 1949 was repeated during the reunification of Germany in 1990 by those that sought to avoid a comprehensive constitutional debate appealing to the people (Chambers, 2004, p. 166).
But, as has been remarked, ordinary participation for the legislative does not say many things about a majority supporting the constitution. And, on the other hand, regarding the postwar German particular circumstances: had the Western Germans any other alternative than to participate in the elections of the bodies designed by the Basic Law? Was that really a free participation under a system imposed by the war victors, with all the constraints of the Cold War at its peak and with the possibility of prohibiting any political party challenging the Western Allied decisions as finally happened in the fifties?22 The high voter turnout in the first general elections to the Bundestag and the electoral preference for the parties that supported the Grundgesetz, as Schneider argued, was not equivalent to popular consent for the new regime, and it might be stated that voters were forced by the facts.
The participation in such electoral processes only expressed the lesser evil. Rather than showing the acceptance of the constitutional framework, a high voter turnout and wide support for the “pro constitutional” parties in legislative elections might reveal the fear of coming back to the clashes that had marked German life until the Nazi defeat.Something similar might be said of the argument regarding the frequent constitutional amendments to which the German Basic Law has been submitted (Kloepfer, 1983, p. 59, Murswiek, 1978, p. 176; Steiner, 1966, p. 225). Constitutional amendments achieved by two-thirds of the representatives of both federal legislative chambers might hardly be considered an expression ofthe German citizenry and an example of general political mobilization. Basic Law amendments are closer to an act of ordinary politics than to a “constitutional transformation.” What is rather the problem is precisely that that citizenry has always been excluded from constitutional amendments, counting also those amendments passed in the reunification process. Such amendments that have scrupulously followed the constitutional procedure without any popular involvement and grounded just in ordinary elections may strictly be considered pouvoir constitue (or, more precisely, pouvoir constituant derive), but not constituent power.
What really conferred legitimacy to the Western German constitutional system from 1949, as happened in other European countries in the postwar period, were the extraordinary economic growth and the social advantages that derived from it. Prosperity in the early phase was sharply boosted by the liberalization of trade that accompanied the adoption of Marshall Aid and by the recovery of international markets. The Basic Law, with the primacy of the rule of law above democracy in defence of property rights and the market economy that had been consecrated, became the perfect legal receptacle to foment such a golden age. Western Germany led most of the economic indicators of growth. Its foreign trade, for instance, increased by an astonishing average of 16 per cent per year between 1948 and 1962 (Kershaw, 2018, p. 135). Such sustained high rates of growth permitted the increase of wages and salaries in real terms, improving living standards. At the same time, the governments, even liberal conservative ones at the federal level and in some Lander, benefited from the gain of additional tax revenue to fund social welfare programmes. The harshness of the crises in the seventies did not hamper, once the path of prosperity was reassumed in the
Constituent power without “We the People” 155 eighties, Western Germany's definitive triumph over the communist Eastern part of the country.