The voice of the German People

In an era in which democratic-based nationalism is engulfing great parts of the Western liberal democracies, the German constitutional system has remained relatively untouched by such a movement.

The German Federal Republic has not departed from its international commitments, beginning with its leading role in the European integration process, which also represented barriers against populism and policies exclusively centred on the satisfaction of national interests. Liberalism, rule of law, the defence of fundamental rights, and openness to international systems, were the principles that shaped the main characteristics of the German constitutional order, and still do. The fidelity of the German political and intellectual cadres to these fundamental mandates had been compensated by the enthronement of the German Republic as a global economic hegemon. Germany's success in terms of growth and welfare has also implied, however, the renouncement of the German elites of access to global political power, which their antecessors in the first half of the twentieth century had tried to obtain (Kundnani, 2015, pp. 13-15).

Several questions from the present context may arise: until when will German economic growth be sustainable? Until which point can the condition of economic hegemon be compatible with an irrelevant level of political power at the global scale? What relationship may be established between the German Republic and the European Union and to what extent should the German Republic use the European Union as its instrument to strengthen its political position within the global arena? But, given the present approach centred on the question of the constituent power, the question would be until when will the German elites and the German citizenry put up with the circumstance of being ruled by a constitutional system determined by the winners of the Second World War?

The seeds of the return to a German national-centred constitutional approach have already been planted in the developments of the jurisprudence of the German Constitutional Court. The guardian of legalism has become the main voice of the narrative as well regarding the democratic foundations of the German Republic, and also the main promoter, through the doctrine of the constitutional identity, of attaching the idea of a constituent agency to that of the German nation.

Even though, in the debates between the German Constitutional Court and the European Court of Justice concerning the Euro crisis, the German Court's claim based on the German constitutional identity arose in defence of liberal economic policies, the German opposition, let's say, to the monetary policies of the European Central Bank, was built in defence of German national interests and, particularly, in defence of the German financial establishment which retained the bulk of the sovereign debt of the countries of the south of Europe. The German actors lost the dispute and, for the sake of a European process profoundly affected by the withdrawal of the United Kingdom, did not insist on contradicting the European instances. Again, a political sacrifice was experienced by the German political and legal bodies in order to safeguard a stable constitutional framework that, after all, had allowed them to enjoy great economic benefits.

However, multiple factors, from an economic depression to a change in the German political leadership, might make this type of sacrifice less viable in the future. In such a situation, if the German side is at some point convinced that German national interests have to prevail over international commitments, and

Constituent power without “We the People” 167 that need is democratically appreciated, a turn of this nature would probably have constitutional consequences, including a real “constitutional transformation” in which, as states Article 146 of the Basic Law, the German People would have the final word.