Weimar as Warning and White Knight: Interconstitutionalism in Postwar Germany

Justin Collings

Brigham Young University

“No set of legal institutions or prescriptions,” Robert Cover famously wrote, “exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic.” In their excellent new article, “Interconstitutionalism,” Jason Mazzone and Cem Tecimer make a distinct but equally evocative point: No set of legal institutions or prescriptions exists apart from the legal institutions or prescriptions that precede it; behind every constitution there is another constitution—and sometimes more than one. Virtually every constitution, they argue, draws meaning from its predecessor(s). Even constitutions that are no longer in force thus “continue to hold sway” (p. 326).      

Mazzone and Tecimer call this “interconstitutionalism”—a phenomenon they explore with rich historical texture, theoretical nuance, and comparative breadth. Interconstitutionalism is a concept of considerable explanatory power, as suggestive as it is insightful—especially for me as a sometime student of German constitutionalism. In perhaps no other modern constitutional regime has the pull of interconstitutionalism been as powerful as in Germany. In the second half of the twentieth century and beyond, the ill-starred Weimar Imperial Constitution (Reichsverfassung) of 1919 has been a brooding omnipresence in German constitutionalism and constitutional law. It has profoundly shaped the creation, interpretation, and implementation of its more fortunate successor, the Basic Law (Grundgesetz) of 1949.

Interconstitutionalism in Germany would be a rich topic for a monograph. In this short response to Mazzone and Tecimer’s generative article, I wish only to highlight—at a high level of generality and in an impressionistic manner—how the Weimar Constitution has played two crucial but seemingly incompatible roles in the interpretation and implementation of the Basic Law: that of honored ancestor and that of aversive antithesis. Paradoxically, the Weimar Constitution has served as a symbol of both continuity and rupture—a link to the “better Germany” that existed before Nazism and a cautionary tale against which the constitutional order of the Basic Law has consistently sought to define itself. For more than seventy years, German constitutionalism has sought to both avail itself of Weimar’s lingering aura and to shield itself against Weimar’s putative failures. It has been a delicate dance. And it has driven some of the most enduring and influential developments in modern constitutional law.

The aversive influence has been most obvious. Riffing on Karl Marx, I once began my rookie academic offering with this sentence about the Basic Law’s creation: “A specter haunted the [Parliamentary] Council’s deliberations—the specter of the collapse of the Weimar Republic.” So many of the Basic Law’s outstanding features stood out in chiaroscuro contrast against corresponding features of the Weimar Constitution: 

Weimar placed its bill of rights at the conclusion of the document, where it was merely hortatory; the Basic Law placed its fundamental rights at the beginning of the document and declared them to be directly valid law. 

Weimar empowered the Reich president to rule by emergency decree; the Basic Law made the federal president a docile figurehead. 

Weimar allowed a disgruntled coalition of minority parties in parliament to topple a sitting chancellor; the Basic Law required a constructive vote of no confidence that would also anoint a replacement. 

Weimar allowed tiny, dissident parties—including, as it happened, one malevolently malodorous Party—to gain entrance into parliament and expand their influence from that very visible perch; the Basic Law closed the legislature’s doors to any party failing to win at least five percent of the vote in a general election.  

Weimar failed to protect itself against anti-democratic insurgents who sought to destroy it from within; the Basic Law empowered a newfangled tribunal—the Federal Constitutional Court—to ban “anti-constitutional” (verfassungsfeindlich) political parties. 

And on and on.

Like the Basic Law itself, the neophyte Constitutional Court looked to Weimar as a warning. Twice in its first decade, the Court banned a party it deemed anti-constitutional—first the neo-Nazi Socialist Reich Party in 1952 [2 BVerfGE 1 (1952)], then the German Communist Party in 1956 [5 BVerfGE 85 (1956)]. In both instances, the Court stressed that, in contrast to the constitution of the Weimar Republic, the democracy of the Basic Law was a “militant democracy”—one willing to fight fire with fire and unwilling to allow democracy’s enemies to subvert democracy through democratic means. Similarly, the early Court justified crucial methodological moves—its renunciation of legal positivism [1 BVerfGE 14 (1951)], for instance, or its conception of fundamental rights as forming “an objective order of values” [7 BVerfGE 198, 205 (1958)]—by stressing the Basic Law’s contrast in these respects to the constitutional regime of the Weimar Republic.

And yet, Weimar also served, from a very early date, as a hero as well as a goat—as an esteemed antecedent as well as a feckless forebear. Often when construing a constitutional provision for the first time, the Court traced the provision’s ancestry to and through Weimar. These historical narratives often ended with the dissolution of the Weimar Constitution in 1933; often they skipped from 1933 to the framing of the Basic Law in 1949. 

These narratives served both a symbolic and a substantive purpose. The substantive purpose—frequently underestimated—was to probe the nature and contours of the relevant provision. Although German constitutionalism has ostensibly (and loudly) rejected originalism, its jurisprudence is shot through with influential acknowledgments of what Mazzone and Tecimer call the “original, original public meaning” of a given provision—with a nod, that is, to the provision’s Weimar predecessor. The symbolic purpose was to give the Basic Law an indigenous German pedigree—to link it to a nobler German past and to enduring German values. This was often a legitimating gesture: it cast the Basic Law as a genuinely German charter—not merely a mélange of foreign borrowings adopted under the Diktat of Germany’s allied occupiers. I explore many of these themes and much of this history in my book, Scales of Memory: Constitutional Justice and Historical Evil (Oxford University Press, 2021). 

These substantive and symbolic strands of engagement with the Weimar Constitution run right through the principal highways of German constitutional law. And they run right up to the present. Well into the twenty-first century, the Court’s jurisprudence contains regular references to the Weimar Constitution—mostly because the Basic Law, as Mazzone and Tecimer note, explicitly incorporates (in Article 140) the Church-State provisions of the Weimar Constitution, but also because the Court sometimes invokes a right recognized in the Weimar Constitution to reinforce or illuminate a similar right guaranteed in the Basic Law (see, for example, Federal Constitutional Court, Decision of the Third Chamber of the First Senate, July 2, 2008, 1 BvR 3006/07, para. 21)               

The Weimar Constitution thus remains very much alive—even after it passed its 100th birthday (and its successor passed its 70th birthday) in 2019. Despite some renewed attention in recent years, however, Weimar’s enduring influence has gone largely underexplored. One hopes that Mazzone and Tecimer’s rich and provocative article will spur students of German constitutionalism to remedy this gap. 

Justin Collings Justin Collings is Associate Academic Vice President for Faculty Development and Professor of Law at Brigham Young University.

Suggested Citation: Justin Collings, ‘Weimar as Warning and White Knight: Interconstitutionalism in Postwar Germany’ IACL-AIDC Blog (4 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/4/weimar-as-warning-and-white-knight-interconstitutionalism-in-postwar-germany.