Constitutional identity or the return of the German nation

In spite of the background described, even before reunification, there may be observed within the German constitutional context, a resurgence of a nationalistic vision of the Basic Law that, paradoxically, was justified by a strong concern for the defence of democracy and the rights connected to political participation.

The tenor of the Court's judgment.. is that “identity trumps integration”

while Roland Bieber (2009, p. 397) observed that

The Union is presented as a foreign entity, not as part of German's identity. Hence, the main task of the Court seems to be the defense of Germany against intrusions by this entity.

The basic idea concerning the constitutional identity in the German Constitutional Court's approach, might be, thus, that every State action, even those exercised through representatives in transnational organizations, must find through a non-interrupted chain their last resort of legitimacy in the will of the People (Bockenforde, 1992b, p. 302) defined in a hard sense. In the German postwar scene such democracy, as I have explained, had to be understood only in reference to the constituted German democracy, and always limited to a representative democracy.

Using the words of the German Constitutional Court in the Lisbon Judgement, for instance,³⁰ it might be asserted that, according to such interpreta­tions, the German constitutional State is the primary democratic space (“ demok- ratische Primarraum”) in which the self-determination of the German people is achieved.³¹ The people, with some degree of unity or (national) conscious­ness, give themselves a constitutional framework that, in its essence, cannot be conferred to supranational institutions such as the European Union. So, as the German Federal Constitutional Court states:

The Basic Law does not grant powers to bodies acting on behalf of Germany to abandon the right to self-determination of the German people in the form of Germany's sovereignty under international law by joining a federal State.³²

Such an interpretation would hold that the only hope for legitimate governance lies in the domestic constitutional framework and the governance structures should be conceived, and constructed, as ultimately flowing from and controlled by national political and constitutional processes.

Constituent power without “We the People” 163 German Basic Law), which confers the possibility of challenging, by individual complaints, European Union legal provisions able to undermine German Constitutional identity (on German's constitutional identity see Ingold, 2015; Polzin, 2016). Thus, through such types of “popular action” articulated around the constitutional individual complaint against European Union regulations (or their implementation) the German Constitutional Court assumes the role of controlling any European Union measure considered to put at risk, through excess of competence (ultra vires) German constitutional identity as expressed by the German people's self-determination.³⁴ The idea is that any substantial appropriation, via transference of competences to the European Union without the consent of the German citizenry, of core decision-making on constitutional issues, would be rejected.

Constitutional identity would, thus, operate as a limit of a constitutional amendment provided by a European Union act (Ingold, 2015, pp. 6-9 and pp. 10-12; Schneider, 2014). Even though it is not completely clear in the German Constitutional Court jurisprudence if the constitutional identity relates to a concept beyond the material limits of the Basic Law amendments entailed in Article 79.3 of the Basic Law (Polzin, 2016, p. 431), from the first judgements in which the German Constitutional Court outlined the limits to European integration, the eternity clause in Article 79.3 GG appeared as the core of decisions that could not be affected by supranational provisions.

The Court aimed, thus, to give the ultimate authority to the German people through the eternity clause (interpreted as the German constitutional identity) which basically was conceived to keep the issues therein mentioned out of the scope of people's decision. On the one hand, the Court stressed the importance of linking every step to a European “closer union” to the will of the Germans but, on the other hand, the definition of what the constitutional identity is has been from the outset excluded from the consent of the Germans.

The jurisprudence of the German Federal Constitutional Court regarding the limits of European integration, in a different way, also implied the resurrection of the idea of a German nation that had been proscribed since the end of the war, the nation as a culturally and socially homogeneous group. The idea of associating the preconditions of democratic process within the constitutional State with some homogeneous factors assigned to the People was deeply elaborated by Carl Schmitt in the interwar time [which included a famous critique of the federation's national pluralism (Schmitt, 1993, pp. 375-376)]. Schmitt's idea

was that the constitutional provisions that represented the fundamental decisions given by the people in exercising their constituent power were outside the scope of constitutional amendments (see Polzin, 2016, pp.

Schmitt’s approaches were revisited by the German Constitutional Court shortly after reunification, in examining the compatibility between the 1992 European Union Treaty and the German Basic Law (see Hestermeyer, 2013). The Court’s reasoning on the nature of the demos that constitutes a limit to integration may be encapsulated in the following statement:

States need sufficiently important spheres of activity of their own in which the People of each can develop and articulate itself in a process of political will-formation which it legitimates and controls, in order thus to give legal expression to what binds People together (to a greater or lesser degree of homogeneity) spiritually, socially, and politically.³

The German Constitutional Court perspective, that has been reiterated, for instance, on the judgements concerning the European institutions managing the sovereign debt crises, envisages a democratic theory grounded on an idealized interpretation of the historical facts. The Court, often accompanied by some sectors of the doctrine, has devoted itself to extract a past on the German people’s involvement in constitutional decisions that has never been, a past that, in fact, has fluctuated in an almost completely opposite direction to the image presented, with the intention of restraining the supremacy of European governance.

Such indicated trends in the German Constitutional Court’s jurisprudence were, for instance, confirmed in its decision issued on May 5, 2020 in which the Court arrogated itself the power to control the European Union law under the parameters of the German Basic Law.³⁶ The Court declared that the pro­gramme of sovereign debt purchasing launched by the European Central Bank had been developed beyond the powers transferred to the European Union and encroached on the democratic principle, fundamental rights of political participa­tion, and, consequently, the German constitutional identity.

Being aware of the legitimacy problems of invoking the emergence of the people within the German constitutional system, consequently, it is not casual that such idealization of the centrality of the German citizenry has been close to an approach on the constituent power as a reconstruction. More than in other constitutional systems, the German one is focused on the ex post facto resurrec­tion of the foundation through the democratic channels provided by ordinary politics in the way conceived by Lindhal, Loughlin, or, among the German doc­trine, Bockenforde. In sum, the democratic foundations of German constitution­alism represent an attempt to cling to the well-functioning present democracy in order to forget the deficits of the past. The constituent agency invoked to demo­cratically cement the system, however, is precisely that from which arose all the demons of the past, namely, the German people conscious of its national unity, an agent able to undermine the whole constitutional architecture forged by the Allies when they attended the laying of the first stone of the Basic Law.

The constitutional resurrection of the German nation stems from the German Constitutional Court doctrine towards the European Union, but also in relation to the Lander, which the Allies had perceived as one of the main safeguards to prevent the return of a German unitary power. In a relatively unnoticed resolution, some judges of the German court identified the German Federation with the idea of nation-State (Nationalstaat), an association for many years surrounded by the taboo that accompanied the word “nation,” given the memories of the Nazi past.

While analyzing an individual constitutional complaint concerning the celebration of an independence referendum in Bavaria, judges Huber, Kessal- Wulf, and Konig rejected the claim by stating that:

In the Federal Republic of Germany, which is a nation-state based on the constituent power of the German people, Lander are not “masters of the constitution.”³⁷

In a few words, the Court contradicted the historical context in which the Federal Republic emerged (a constituent process that between 1946 and 1949 was initiated by the Lander) and prepared the grounds to allow the reappearance of a unitary conception of the German people within the German nation.