The People and the constituent power in Germany's reunification

From the constitutional point of view, the events in Germany in 1990²³ did not differ substantially in comparison to those experienced in 1948-1949 at least regarding two basic characteristics: (1) the 1990 German Reunification was supervised by the powers that had won the Second World War (this time includ­ing Gorbachev's agonizing Soviet Union) and (2) the German citizenry, except in the first phase of demonstrations in Eastern Germany in the fall of 1989 and with some constitutional initiatives coming also from the East, was displaced from adopting political decisions directly.

The German “national deficit” that some scholars such as Kirchhof or Isensee mentioned, envisaging the direct involvement of the German People in giving itself a constitutional framework, was not remedied in 1990.

Reconstruction theories such as the ones commented on in the previous section, such as giving significance and democratic legitimacy to the constitutional provisions through the procedures developed in the day-to-day functioning of the German Republic, were nonetheless still invoked by the doctrine after 1990 as the opportunity to strengthen the democratic foundations of the system. Yet, the preservation in 1990 of the basic decisions on the allocation of power assumed in 1949 (the constitutional principles of the eternity clause, the liberal market economy, the dependence on foreign powers, and the restrictions on public involvement in deciding on constitutional issues) makes it difficult to state that constitutional changes displayed in 1990 represented a “constitutional transformation” in the terminology that I used here.

Take the reading of Article 146 of the Basic Law, for instance - that provision which foresaw precisely the scenario of reunification and that, nevertheless, did not apply to the very case for which the article was intended (Mollers, 2007, p.

The consent that was required for uniting both German States, instead, was that of the Allies through an international treaty: the Treaty on the Final Settlement with Respect to Germany of September 12, 1990 between the German Federal Republic, the German Democratic Republic, the Soviet Union, the United States, the United Kingdom, and the Republic of France, also known as the “Two plus Four” Treaty (Kilian, 2003, pp. 632-635; Quaritsch, 1995, pp. 383-400; and Schweitzer, 1995). It was not until the conclusion of the Two plus Four Treaty that the Allied Powers considered the rights and the responsibilities towards Germany to be finished and that, consequently, the full sovereignty of Germany to be restored.²⁴ In fact, what the Americans, the British, the French, and the Soviets thought to avoid in concluding the Treaty was precisely the involvement of the German People considered in its unity in accepting the new political status. It is likely that the lack of applica­tion of Article 146 of the Basic Law in the reunification process was a direct consequence of the negotiations with the participants of the Two plus Four Treaty (Kilian, 2003, p.

In a similar vein as experienced in 1949, Western Allies worries were shared by Western German political elites. Both deemed that the farther the process be kept from direct public involvement, the better. Indeed, for many members of the German political and academic establishment in 1990, the idea of a full-scale constitutional debate on the Basic Law seeking democratic endorsement for a new constitution was horrifying (Chambers, 2004, p. 165; Schauble, 1991, pp. 287­307). The Western German government, furthermore, did not want to miss the chance of proceeding with a fast reunification within an internationally favourable atmosphere and pondered that a long deliberation on the constitutional status may put the whole political operation at risk. In the end, the constituent power of the now united German people was invoked only by politically marginal groups in the two German States (Preuss, 2006-2007, pp. 479-480).

The most intense public discussion on constitutional matters occurred shortly after the fall of the Berlin Wall, when the possibility of maintaining the German Democratic Republic as a separate State with its own constitutional framework was discussed. In the first weeks after the events of November 9, 1989, spontaneous roundtable discussions sprang up throughout East Germany: meetings of civic-minded citizens, dissenters, local officials, and ordinary citizens who got together to debate how the political energy exploding all around them could be funnelled into the creation of a democratic German Democratic Republic (GDR) (Markovits, 2008, p.

A central Roundtable of the German Democratic Republic was established on December 7, 1989, adopting the decision on drafting a new constitution for East Germany. But all such channels of deliberation began to decline, in the first instance, when it began to be perceived that the roundtable was used as a device by the Eastern Germany authorities to retain some legitimacy and, in a second instance, when it became clear, by the spring of 1990, that Germany would be reunified by a simple accession of the GDR to the Federal Republic. A freely elected Parliament in Eastern Germany, the Volkskammer, might have played the role of a constituent assembly, but in the elections held in Eastern Germany on March 18, 1990, the conservative alliance obtained an outstanding result and they pressed, following the intention of the Western German Chancellor, Helmut Kohl, for swift unification.

In spite of the original efforts in the German Democratic Republic to produce a new constitution in a process of communication free of domination by the elites the final product of the unification under the system of the German Basic Law was decided by a reduced group of politicians. The roundtable drafting committee handed over its work to the newly constituted Volkskammer three weeks after the elections in the GDR (Markovits, 2008, p. 1331) but the Christian Democratic majority in the chamber considered that the constitutional draft would jeopardize reunification and decided not to transfer it to the competent committee.

In the end, thus, the way chosen to complete reunification was that of the former Article 23 of the Basic Law, which foresaw the extension of the German Federal Republic constitutional regime to newly incorporated Under [the same way that had been used with the integration of the Saarland in 1957 (Chambers, 2004, p. 166; Lerche, 1995, pp. 421-424; Kilian, 2003, pp. 637-639; and Quint, 1992-1993)]. No new constitutional order would be created, but German reuni­fication would merely be an extension of the 1949 Basic Law to other territo­ries.

In spite of the fact that a subcommittee of the two houses was established to discuss the constitutional arrangements derived from reunification (the Joint Constitutional Commission) the substance of the debate was quite nar­row and its ultimate recommendations were minimal (Benz, 1994). Around 800,000 submissions from the citizenry were received by the Joint Constitutional Commission but it was never clear what happened to them (Chambers, 2004, p. 167). The Unification Treaty was finally passed by a two-thirds vote of the German Democratic Parliament (which would cease to exist with the Treaty's entering into force) and, in West Germany, by two-thirds of the votes of the Bundestag and the Bundesrat (according to Article 79.2 of the Basic Law that entails the general procedure to amend that rule) but this vote had been delivered in a procedure in which no amendments had been allowed (Quint, 1992-1993, p. 694). The constitutional amendment procedure was challenged and upheld by the Federal Constitutional Court. The Court, nevertheless, rejected the com­plaint, that had been lodged by a small number of conservative Bundestag mem­bers, and justified the use of an extraordinary procedure.²⁶ The decision of the Bundestag, thus, was a decision to approve or ratify a decision already made by treaty negotiators without transparency (Quint, 1992-1993, pp. 694-695).

Following the same logic that was alleged after the settlement of the Western German Federal Republic, the democratic justification of the constitutional arrangements carried out by reunification was extracted from the first ordinary elections of the unified Germany to the Bundestag held in December 1990 (Heckel, 1995, p.

The outcome of the modest amendments to the Basic Law made in 1990 revealed, thus, that at the end of the twentieth century the German political and social background was still anchored in the framework of powers and fears that surrounded the original approval of the Basic Law (Preuss, 2006-2007, p. 480). The winners of the Second World War imposed their will again in several ways: by prohibiting, for instance, any territorial stretch by Germany beyond the Oder-Neisse line, by forcing German politicians to commit themselves to the European integration process once reunification was achieved (Kumm, 2016a, p. 923), or by limiting the direct participation, by German citizenry, in decision­making processes, confirming that the current German constitutional system was still the product of a military defeat or, to say it in another way, that the German constitutional settlement was the consequence of a violent context.

The political mobilization in 1989 was not translated into a constitutional transformation able to leave behind the inheritance of the postwar period. Had the German reunification boosted a “constitutional transformation” through a free and massive political participation, capable of challenging the order established after the 1945 capitulation, such a movement would probably not have lacked convulsion, or, at least, would not have been easily accepted by the Allies.

Although some German authors such as Jaggi (2016a, 2016b) hold a complacent view on the events that brought about the German reunification and argue that they were marked by a popular mobilization in the East from which somehow the resultant constitutional system of the Basic Law was benefited, I would remain closer to the interpretation provided by Bruce Ackerman on the issue. Ackerman did not see, in 1990, any trace of the popular involvement with which he characterizes a revolutionary constitutional movement and, consequently, offered an ambivalent assessment of the German Basic Law model

Constituent power without “We the People” 159 from the democratic point of view (1992, pp. 101-112). While appreciating the success of the German Federal Republic from the point of view of the rule of law (partially expressed in the enormous prestige of the German Federal Constitutional Court and its commitment to the defence of the fundamental political principles and fundamental rights), Ackerman admits that the German constitutional development is a “second-best” or “half as good” as a model triggered by political mobilization or by, as Ackerman calls it, a “constitutional moment” in the midst of a liberal revolution. According to this interpretation, that I share, the German constitutional experience after the fall of the Berlin Wall was too dependent on the benign decisions of a political and judicial elite to define and guarantee basic rights, and as such it could not be associated with a true revolutionary liberal movement. In short, Germany has managed to forget the fact that, in both 1949 and 1989, its political elite refused to place the constitution before the voters for their considered judgement (see Ackerman, 2015, p. 711).

Violence founded the 1949 German Basic Law, and the remembrance of such violence avoids any constitutional transformation of the system even today. One of the main devices which guarantees the impossibility of reproducing violence again is the set of limitations on popular involvement, designed to put insurmountable obstacles in the way of the German people freely deciding, because somehow, though generations pass, the responsibility of the collective descent towards totalitarianism is still attributed to the democratic decision adopted by the Germans. Such an “anti-populist” strand devoted to introducing bounds on the decision of the people, which dominated the founding of the 1949 Basic Law and its subsequent developments, has had a prominent influence on the contemporary constitutional discourses on the question of drafting a Constitution. Populist fears and the remembrance of violence have marked not only the constitutional paradigm for Germany and Central Europe but also the European integration process itself, to which the German constitutional developments had been a source of inspiration.