Introduction

To date, the constitutional system of the Federal Republic of Germany may be considered one of the most successful political experiences among the liberal democracies. Even though there is widespread awareness of the violent origins of that system (linked to the total collapse of the Nazi regime in a way that is difficult to conceive a constitutional rule more dependent on the crimes and coercions that surrounded its birth), less shared is the perception of the scarce involvement of the citizenry in the adoption of the fundamental decisions in Germany's constitutional history from 1949.

While in the twenty-first century people's participation, as we have seen, has been a recurrent topic concerning the constituent processes that have taken place in some parts of the world, few observers have remarked to what extent the German system is far from fulfilling any of the democratic requirements that now are so passionately discussed and claimed regarding other constituent scenarios. It may be argued, with a certain wicked intention, that, given the previous experiences of the twentieth century, depriving the German people from participating in the constituent debate is an important factor on which the success of the model has relied.

The silence about Germany in regard to the democratic constitution-making process is still more shocking considering that the Germans had another opportunity to trigger a participative revision of their constitutional framework in a more peaceful and placid context, as was the one that followed the fall of the Berlin Wall in 1989. Instead, they relinquished any coaching of Germany's national reunification with a broad popular involvement on the new constitutional foundations. I may doubt, accordingly, that in spite of the profound political significance of the absorption of the former German Democratic Republic, this move might be considered a “constitutional transformation” at all.

German constitutional developments have been also, as reflected in my theory, processes conducted by the elites. Although the German political cadres in the constitutional-making phase represented a break with the immediate, Nazi, past the economic elites in Western Germany that were behind the political decisions adopted in 1949 had been involved to a great extent with the previous regime (Arendt, 1976, pp. 326-339) and, as we shall see, would assume progressively a relevant role in the governance of the new republic with the consent of the Western Allied Powers. Unsurprisingly, Bruce Ackerman (2015, p. 710) also views the Basic Law as the product of “elite construction” which in his account means that it is “not a revolutionary creation.” The German path to constitu­tionalism would thus be an example of a constitutional order emerging from the embers of an old regime boosted by cadres (including some of those involved in the Third Reich) who, despite their claims to have acted in the name of the peo­ple, generate a new constitutional order in the absence of any genuine popular participation (see on this point also Jacobsohn and Roznai, 2020, p. 134).

Obviously, the presence of the Soviet Union and the beginning of the Cold War by the winter of 1948 would instigate the leadership of the United States and Great Britain (France was another matter) to tolerate the redemption of the German industrialists and bankers that had behaved themselves in compliance with Hitler's regime. If the German Federal Republic had to be in the first line of the fight against Communism and if that struggle decisively depended on the economic success of the Western part of Germany vis-a-vis its Eastern counterpart, liberal democracies needed to co-opt the German economic powers by forgetting their previous political allegiances (see, among many other historians, Mazower, 2008, p.

The reunification process in 1990 was also a process monopolized by both the political and the economic elites of Western Germany with the consent of the victors of the Second World War. As I will point out, the constitutional system resulting from the incorporation of the five new Lander was not developed through any constitutional Convention nor through a vote of the German citizenry in a referendum. Chancellor Helmut Kohl, the figure that led the process, from the Christian Democratic Union, would not allow the leftists from the former Eastern Germany (or even the socialists from Western Germany itself) to become a majority in an eventual constituent Convention nor to exercise a relevant role in transforming the German constitution with a more social and egalitarian blueprint (see Ackerman, 2015, p. 711 and 2019, p. 20).

But let us now examine the time in which the present Germany has its origins from the constitutional point of view, and that means to place us in the scenario that stemmed from the immediate aftermath of a war that Germany lost.

Die Stunde Null

The strongest constitutional culture in Europe departs from a constituent power deprived from the People.¹ The German Basic Law was the direct consequence of one of the most outrageous periods of violence that humankind has seen, the Second World War and the defeat of the Nazi regime, and the path that led to its drafting was accompanied by all sorts of coercion caused by the Allied occupation, in terms of physical destruction, imprisonments, displacements, and vengeances.² Laying aside some three million dead German soldiers, by May 7, 1945, at least 1.8 million German civilians had perished and 3.6 million homes had been destroyed (20 per cent of the total) leaving 7.5 million homeless. As many as 16.5 million Germans were to be driven from their homes. Of these some two and a quarter million would die during the expulsions from the south and east (McDonogh, 2009, p. 1).

Law and order are virtually non-existent, because there is no police force and no judiciary. In some areas there no longer seems to be any clear sense of what is right and what is wrong. People help themselves to whatever they want without regard to ownership - indeed, the sense of ownership itself has largely disappeared. Goods belong only to those who are strong enough to hold on to them, and those who are willing to guard them with their lives. Men with weapons roam the streets, taking what they want and threatening anyone who gets in their way. Women of all classes and ages prostitute themselves for food and protection. There is no shame. There is no morality. There is only survival.

(Lowe, 2013, p. xiii)

Germany and the German people were, thus, absolutely devastated and the Basic Law that four years later would emerge from the ashes would be chiefly conceived by the Powers that were occupying the Western regions of the country. The constitutional law scholar C.J. Friedrich made it clear at the time:

Any consideration of this Basic Law should start from the fact that the charter is not the creation of a free people, and that it will have to function within limits, both territorial and functional, which severely handicap its chance of becoming a genuine constitution, securely anchored in the basic convictions of the people.

(Friederich, 1949b, p. 704)

Even the name of the document, the Basic Law, makes somehow explicit both to the Allies and to the Germans that the new State’s framework was not provided by a Constitution in the sense of a rule passed with the consent of the governed (Patberg, 2017, p.

Constituent power without “We the People” 137 deliberating on their future. Instead, when popular mobilization took place, it was in the final stages of the Weimar Republic and allowed the Nazis to seize power and to be sustained in it during the war (being the latter one of the most disquieting phenomena concerning modern democracy). Somehow, Nazism had been a rogue product of modern democracy coupled by the idea of nation as the most important category for organizing human affairs (see, among many others, Arendt, 1976, pp. 305-326; Slobodian, 2018, p. 29).

Such aversion to the populism that had led to catastrophe would be reflected in the Basic Law's lack of provisions concerning mechanisms of direct participation by the citizenry in decision-making processes. While in the America of the eighteenth century the “People-out-doors,” as we have seen, was associated with revolution and emancipation, in post 1945 Germany “the People” unrestrained had other darker reminiscences. Among them, for instance, might be highlighted some expressions of direct acclamation by the People, such as the referendum held on August 19, 1934 by which Adolf Hitler's assumption of supreme power was passed, the referendum concerning the annexation of Austria and the approval of a single list of Nazi candidates for the Reichstag (held on April 10, 1938) or Nazi meetings such as the one that took place on February 18, 1943, on the occasion of a speech delivered by the German Propaganda Minister Joseph Goebbels calling for a total war shortly after the collapse of the German forces in Stalingrad: “Wollt ihr den totalen Krieg?” “Do you want total war?” was the question launched by Goebbels to an enthusiastic audience which feverously and unanimously replied: “Ja!” (“Yes”). A total war that certainly brought total defeat (Rohrich, 1997, p. 30). Taking such a background into account, the total mobilization of the People fostered by the Nazi regime caused Mollers (2007) to illustratively characterize the German constituent power behind the 1949 Basic Law as “We (are afraid of) the People.”

Aside from the spurious use of mechanisms of direct popular participation by the Nazis, the system of the Weimar constitution, even before Hitler was appointed Chancellor in 1933, had been much richer in providing channels of public involvement than the 1949 Basic Law would ever be.

restriction of popular input to changes of Lander borders (Markovits, 2008, p. 1312), were products of local initiative.

Even though the idea of a completely new beginning for Germany from May 1945 is contested by some historians and some relevant lines of continuity with the past may be appreciated (see Spevack, 2001, pp. 58-59), it was in the described paramount of total physical and moral devastation and a profound caution towards democracy where the path that led to the Grundgesetz approval was inaugurated.⁴