Involvement of elites in the shaping of the German constitutional framework

The German People did not give its consent to the German Basic Law passed in 1949. But, as Noah Feldman argues in his study of imposed constitutions, any constitutional framework, even those designed from the outside by foreigner pow­ers, need at least the consent of a substantial part of the local elites to be estab­lished (Feldman, 2004-2005, p.

But which elites were present in Germany after the destruction of the war?¹⁸ The political cadres involved in the formation of the Bonn Republic were mainly composed by former opponents of the Nazi regime or from institutions, such as the churches, that although they did not directly fight Nazism they had at least expressed their discrepancies with Third Reich policies and had not collaborated with its atrocities.¹⁹ Such actors, people like Konrad Adenauer (CDU), Carlo Schmid (SPD), or Theodor Heuss (FDP) still preserved some moral author­ity before the eyes of the occupants. Almost three-quarters of the delegates in the Parlamentarischer Rat had been professionally disadvantaged in the Hitler years, but prison sentences under the Nazis among the mentioned group, except for some of the Socialists and the two Communists, had been relatively rare (Markovits, 2008, p. 1310).

In a country in which Nazism was so widespread and deep-rooted, retribution did not concern all the individuals that had been engaged with the regime. The retaliations and the punishments dictated by the Allies had a limited impact on the Nazi leadership,²⁰ but other strata of German society went through denazifi­cation with relative indemnity. After all, Germany's reconstruction needed some elements of the previous power structure to be grounded (Preuss, 2006-2007, p. 475). As General Lucius Clay, the American Military Commander, pointed out regarding the organization of a German administration:

our major administrative problem was to find reasonably competent Germans ‘who had not been affiliated or associated in some way with the Nazi regime.... All too often, it seems that the only men with the qualifications... are the career civil servants. a great proportion of whom were more than nominal participants (by our definition) in the activities of the Nazi party.

(quoted by Judt, 2005, p. 56)

Already having in mind the aim to create a new political entity, the future West German Chancellor Konrad Adenauer, on May 5, 1946 spoke out against the denazification measures demanding that the “Nazi fellow travelers” be left in peace. The political leaders that were being envisaged for the new German beginning, thus, considered it more prudent to encourage silence on the social support that Hitler's regime had had.

Among such “Nazi fellow travelers,” in the territories controlled by the Western Allies, an important part of the German economic oligarchies could be included. In spite of the general devastation of the country, some productive structures survived the catastrophe. During the last months of the war the Third Reich Minister of Arms and War Production, Albert Speer, worked to circumvent Hitler's instructions regarding the destruction of German industry in the territories that were going to fall into the hands of the Allies (the so-called Nero Decree).

However, most business owners of the surviving industrial premises had played an active role under Hitler's dictatorship. It was not only that the punishment against capitalist Nazi supporters was light at the end of the war, but also that their engagement with the future Federal Republic would be crucial in order to have some perspective of stability and economic recovery (and certainly to compete with the Soviet-occupied Germany, where the action of Soviet authorities was focused on expropriating and finishing economic elites in order to erect a communist regime).

Indeed, the relevant part of the German capitalists that supported Hitler were going to play a prominent role in the development of West Germany and would also emerge as an important social agent in the reconstruction of the whole continent through a European integration process grounded on the principles of the market economy. In the European arena, some of those German industrialists that regained their position after 1945 would meet with businessmen from France, Belgium, Luxembourg, or the Netherlands who had been involved a few years earlier in negotiations when the Nazi Economics Ministry of Germany had talked about organizing European cartels and output planning (Mazower, 2008, p. 571).

In spite of the abundance of material on the German oligarchies provided by sociology and political science [mostly concerned with the character of the German elites and their contribution until 1945 to the historical failure of democracy (see, among many others, Beyme, 1971; Dahrendorf, 1967; Hoffmann-Lange, 1991; Zapf, 1965)], approaches that stress the continuity in Western Germany of the economic elites involved in the Nazi regime have been scarcer.

Constituent power without “We the People” 151 restored to his former eminence as the leading shareholder in Daimler-Benz. Flick became the richest person in West Germany during the Cold War and was one of the richest people in the world at the time of his death in 1972. Senior figures in the incriminated industrial combines of I.G. Farben and Krupp (like Otto Ambros and Alfred Krupp) were all released early and re-entered public life little the worse for wear. By 1952, Fordwerke, the German branch of Ford Motor Company, had reassembled all its senior management from the Nazi years (Judt, 2005, p. 58). Harald Quandt, the son of Gunther Quandt and Magda Behrend, who later would marry Joseph Goebbels, also ran with his half-brother Herbert Quandt, the industrial empire inherited from his father after the Second World War. Gunther Quandt, Harald's father, was arrested and interned in 1946 but was soon released, in 1948, considering that while he accepted Nazi ideology, he supposedly did not take an active part in crimes. Harald Quandt served as a lieutenant in the Luftwaffe and was captured by Allied troops in Italy but was also soon released, in 1947. The Quandts, among other businesses, are owners of about 46 per cent of the Bayerische Motoren Werke (BMW) vehicle manufacturing company until the time of writing. The owner of the clothing company that designed and supplied the Nazi uniforms from the twenties, Hugo Boss, was only condemned to a fine of 100,000 German marks for being a supporter and beneficiary of National Socialism. Also from the textile industry, the support to the Nazis given by the Dassler brothers did not stop them, in the postwar period, from making burgeoning businesses through their firms: Adidas and Puma. Companies such as BASF, Hoechst, Siemens, Henschel, Volkswagen, Adam Opel AG, Bayer, and Deutsche Bank, which profited from slave labour during the Nazi era, also carried on with their activity and even expanded from 1945 (Lubbe, 2005).

In summary, most of the pre-war economic powers and academic staff integrated decisively in the constitutional movement that led to the approval of the 1949 Basic Law and underpinned its consolidation. The legal framework there provided, especially on the point concerning the guarantees on liberal economic individual rights and the constraints on radical democracy, was designed to protect the interests of such elites. Accordingly, the Basic Law constitutional devices that were foreseen to limit democratic excesses that had emerged during the Weimar Republic might also be interpreted in another fashion: the restrictions on popular participation would be seen as particularly suitable for the elites in order to exclude political mobilization against the pillars of the liberal economic

order. After all, as was observed in analyzing the composition of the Parliamentary Council, the German Basic Law drafters were mostly “formed by bourgeois­liberal conceptions of a constitution” (Werner, 1996, p. XV). Making again an analogy with the events that motivated the creation of the United States Federal Constitution and the willingness to protect the interests of the oligarchies against the revolutionary masses, the drafting of the German Basic Law after the Second World War also contemplated counter-majoritarian institutions to safeguard the capitalist and free market economic order.

We have defined our theory ofthe constitution as a legal document that translates a decision on power previously gained by violence. However, the mention of the German Basic Law constituent process is likely to be to some degree contradictory with such an idea since it might be considered a rare example of a constitutional framework conceived to design the allocation of power among the defeated. To which constellation of powers would German postwar constitutionalism serve in its attempt to perpetuate the structures previously gained by violence? This question has a historically clear answer, albeit concealed by the circumstances: the German Basic Law sought to consolidate the power of the Western Allies and the forces of liberal capitalism against the danger represented by the Soviet Union. If the Allied political and military leadership sought to pass a Basic Law initiated with the protection of human rights and the statement: "Human dignity shall be inviolable,” it was not because they felt sympathetic towards a people who had been involved in horrible crimes (and who had been their enemies not long ago); it was, instead, because they needed to obtain their loyalty in order to contain the Soviet threat.

The role of the 1949 German Basic Law in strengthening the existing powers in the territories controlled by the Allies represented, in conclusion, the alliance between the foreigner occupants and the German capitalist forces, most of these related to the former Nazi regime, and easily redeemed after a short conviction (or after not being convicted at all). For the constituent forces, human rights were important, but they were important to be recognized besides provisions emphasizing capitalist economic safeguards (such as, for instance, Article 14 of the German Basic Law ensuring private property and right to inheritance). The aim was to ensure capitalism in Western Germany as a first step to designing a capitalist free market area at the level of Western Europe able to compete against its socialist alternative.