The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law: The Forgotten Revolution? 9781509916948, 9781509908011

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In memory of Nina Foucher

Introduction

“[W]ithout this thinking completion after the act, without the articulation accomplished by remembrance, there simply was no story left that could be told” (Hannah Arendt, Between Past and Future, 6).

A revolution took place in Germany in the fall of 1989.1 It was a peaceful revolution by the people of the German Democratic Republic (GDR) for civil rights, real democracy, social rights, real equality for women, and environmental protection. It was a powerful revolution sweeping away the SED regime, dissolving the GDR, and unifying Germany after 45 years of separation. But, what remains of it? Does its meaning exhaust itself in abolishing the GDR and paving the way to German unity? Or has it managed to have a substantive and lasting impact on unified Germany’s constitutional law? The dominant opinion’s2 answer to the latter question tends to be No. It argues that the 1989 Revolution’s constitutional impact was limited to the GDR and disappeared with it. The Revolution abolished the GDR, paved the way to German unification, and, after achieving unification, lost its meaning and effect. According to the dominant opinion, the GDR’s accession to the Federal Republic of Germany (FRG)3 led to an unconditional

1 Some authors call it the German “October Revolution”, see Schäuble, in: Guggenberger/Stein (Hrsg.), 302; Häberle, JöR 1990, 320. I will refer to it as the “1989 Revolution” because it had its decisive breakthrough in Oct. 1989, see infra, 59 f. Since it continued until the first free elections of the GDR Parliament, the Volkskammer (VK), on Mar. 18, 1990, it may well be called the 1989/1990 Revolution, though. 2 Dominant opinion is a term used in German and European legal scholarship (but also in court opinions) to signal that an opinion on a specific topic is shared by a majority in the legal literature (or in the judiciary), see generally Schnur, in: Doehring, Karl (Hrsg.), Festgabe für Ernst Forsthoff, 46; Tuschak, Die herrschende Meinung als Indikator europäischer Rechtskultur (2009). 3 I will use this abbreviation for the Federal Republic of Germany throughout this work for purposes of convenience. By using it, I do not intend to make any political statement regarding the legal or political status of the two parts of Germany prior to unification.

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Introduction

adoption of the FRG’s Basic Law (Grundgesetz, GG) by the “new states”4 and resulted in a simple extension of the FRG’s constitutional order to unified Germany.5 Where the GG was amended, such amendments are considered pure technicalities made necessary by unification to make the FRG’s constitutional law applicable in the new states as fast as possible. The West had proven to be superior, and it gave its time-tested GG as a present to the prodigal sons and daughters from the East. A multitude of voices in the literature reflects this attitude. Konrad Hesse, for example, one of Germany’s most respected constitutional law scholars and former justice of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), introduces the 20st edition of his treatise on German constitutional law with the following statement: German unification has, of course, neither led to a new nor to a substantially changed constitution. The constitutional reform that has been tackled according to the recommendation in Art. 5 Unification Treaty has remained without success. There have been no fundamental changes, and the changes that the Basic Law has eventually experienced display hardly any connection with the big task of achieving an inner German unity, which would also have been a constitutional question. Whether this is a missed opportunity or merely the prevention of erroneous developments may be controversial. In any case, the most important result of this first phase of unified Germany’s constitutional development is the renunciation of more [der Verzicht auf Mehr] ….6

Wolfgang Schäuble, the FRG’s chief negotiator of the Unification Treaty (Einigungsvertrag, UT),7 writes that constitutional amendments were limited to what was “irrefutably necessary” for unification.8 Rolf Reißig states that even though the last year of the GDR’s existence did bring forth results that would have deserved to be transferred to unified Germany, such as the new approach to politics related to the citizens’ movements, the Round Table, the Social Charter, and the joint drafts of a new constitu-

4 The “new states” are the states that were established on the territory of the GDR as a result of the 1989 Revolution and that became states of the Federal Republic of Germany upon unification on Oct. 03, 1990. The new states are Mecklenburg-West Pomerania, Brandenburg, Saxony-Anhalt, Saxony, and Thuringia, see infra, 119. 5 See infra, 27, 29 f., 93 f. 6 Hesse, Grundzüge, V (my translation; my italics). 7 The treaty‘s official name is Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands – Einigungsvertrag – v. 31. August 1990 (BGBl II S. 889). 8 See Schäuble, in: Guggenberger/Stein (Hrsg.), 293; see also Badura, in: HStR VIII, § 189 Rn 11; and Winkler II, 590, 591.

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Introduction

tion,9 the 1989 Revolution finally resulted in an “unconditional adoption of the West German model” on the territory of the former GDR.10 There is an important phenomenon, however, that the dominant opinion is unable to explain convincingly. Since German unification on October 3, 1990, unified Germany’s constitutional law has changed in important ways and many of these changes display elements that featured prominently during the 1989 Revolution. For example, unified Germany’s legislature adopted a new Art. 143 III GG confirming expropriations initiated by the Soviet occupying force between 1945 and 1949 in the Soviet occupation zone, which later became the GDR (the so-called Bodenreformexpropriations, or Bodenreform). It, moreover, adopted a new Art. 20 a GG establishing environmental protection as a goal to be pursued by the government. The BVerfG contributed to the changes in different ways: by holding the Bodenreform’s confirmation constitutional, albeit in a slightly modified form; by establishing a constitutional government obligation to make gender equality a fact of social reality; by giving up the requirement of criminal punishment of abortions undertaken during the first twelve weeks of the pregnancy; and by granting a tenant’s right of ownership in the rented apartment property protection. The Bodenreform’s confirmation, environmental protection, real-social (as opposed to formal-legal) equality for women, a right to abortion, and a constitutional right to housing had been important elements of the 1989 Revolution’s constitutional agenda. If the Revolution has had no substantive impact on unified Germany’s constitutional law, why did unified Germany’s federal legislature and the BVerfG, respectively, bring about these changes? Some authors simply deny the changes. Authors who acknowledge them usually deny any substantive connection between the changes and the 1989 Revolution. For instance, they describe the new Art. 20 a GG on environmental protection as the result of a political discussion that had been going on in the old FRG since the 1970 s and that simply happened to reach an agreement in 1994. With respect to the changes brought about by the BVerfG, these authors limit themselves to either doctrinal or judicial politics arguments. For example, they understand the BVerfG’s holding on the Bodenreform’s confirmation as an act of judicial deference to

9 Reißig, in: Joas/Kohli (Hrsg.), 61. 10 Ibid., 60; see also Henke, Der Staat 1992, 265, who writes that the GDR’s constitutional law was replaced by the FRG’s constitutional law and who calls this a “Verfassungswechsel” (an “exchange of constitutions”).

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Introduction

the legislature or explain the court’s changed approach to abortion as the result of a political compromise between the GDR’s and the FRG’s different abortion models. I hold these explanations, which I want to call traditional explanations, to be unconvincing. They cannot account for the fact that constitutional changes that are supposedly rooted in the old FRG not only occurred in the wake of German unification but also reflect constitutional principles that featured prominently on the 1989 Revolution’s constitutional agenda. Doctrinal arguments appear arbitrary, judicial politics arguments give up too quickly on the possibility of explaining changes brought about by the BVerfG in terms of constitutional interpretation. What all traditional explanations have in common is that they completely ignore the possibility of a substantive impact of the 1989 Revolution on unified Germany’s constitutional law. I want to provide new answers. My thesis is that the 1989 Revolution has had an important substantive impact on unified Germany’s constitutional law and that this impact manifests itself in the referred to changes. Using Bruce Ackerman’s theory of Intergenerational Synthesis (IS) as an analytical tool and based on Hannah Arendt’s work on revolution, I will show three things: (i) the 1989 Revolution was a real revolution, which adopted and retained its own constitutional agenda; (ii) the revolutionary East Germans managed to transfer important elements of this agenda to unified Germany; and (iii) unified Germany’s federal legislature and the BVerfG have brought about the referred to constitutional changes by taking up these elements and integrating them into the existing constitutional order under the GG. My analysis will demonstrate that, even without a plebiscite on a new German constitution, unified Germany’s constitutional law is, at least to some extent, a co-production between the revolutionary East Germans and the old FRG, a product of “revolutionary reform” through “unconventional adaptation”.11 Based on Ackerman’s criticism of an ahistorical understanding of constitutional lawmaking in the U.S., IS stands for a new, historically aware method not only of constitutional interpretation but of constitutional analysis more generally. The analytical process based on IS comprises of three basic steps: (i) the identification of a historical event during which

11 For the concepts of “revolutionary reform” and “unconventional adaptation”, see Ackerman I, 203 ff., 211; Ackerman II, 9 ff.

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Introduction

the people as the pouvoir constituant have engaged in constitutional lawmaking; (ii) the determination of the constitutional principles the people have adopted during such an event; and (iii) the integration and harmonization of different constitutional principles adopted during different historical events. In this respect, Ackerman’s concept of IS is deeply rooted in Arendt’s work. Arendt holds the American Revolution to be the only successful revolution in modern times, because it “founded a completely new body politic without violence and with the help of a constitution.”12 This act of founding, of beginning something new, for Arendt, is the paradigmatic act of political freedom.13 It must be remembered as such in order to stay alive, inspire new acts of political freedom, and help to understand their meaning.14 Written constitutional law is a profound means to safeguard such remembrance.15 The core idea of political history as a key to understanding constitutional meaning lies at the heart of Ackerman’s concept of IS.16 It is based on Arendt’s understanding of the American Revolution as a successful act of political freedom, the remembrance of which has been secured with the help of a written constitution.17 The application of this core idea to the 1989 Revolution and the aftermath of German unification will make both the Revolution and the changes in unified Germany’s constitutional law appear in a new light. It 12 Arendt, Between Past and Future, 140. 13 “Freedom as related to politics is … the freedom to call something into being which did not exist before … ”, see Arendt, Between Past and Future, 150, 164, 166; see also Arendt, On Revolution, 34; and “… political action, like all action, is essentially always the beginning of something new; as such, it is, in terms of political science, the very essence of human freedom”, see Arendt, Understanding and Politics, in: Arendt, Essays in Understanding, 320, 321. 14 “[O]ne may be tempted even to predict that the authority of the republic will be safe and intact as long as the act itself, the beginning as such, is remembered whenever constitutional questions in the narrower sense of the word come into play”, see Arendt, On Revolution, 204. On the importance of remembrance, see also Arendt, Between Past and Future, 5 f. 15 “To the men of the eighteenth century it was still a matter of course that they needed a constitution to lay down the boundaries of their new political realm … so that their own ‘revolutionary’ spirit could survive the actual end of the revolution”, see Arendt, On Revolution, 126. 16 I owe this insight to Paul Kahn. 17 “Rather than forgetting such popular achievements, our Constitution seeks to protect them against erosion during more normal times, when the People are less involved in affairs of state”, see Ackerman I, 19 (italics in the original).

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Introduction

will show the 1989 Revolution as the East Germans’ act of political freedom that brought forth a set of constitutional principles, some of which were transferred to unified Germany, where the constitutional institutions were faced with the challenge of integrating them into the existing constitutional order under the GG. In this light, the legislature’s adoption of Art. 20 a GG as well as the BVerfG decisions referred to above will appear as attempts to respond to this challenge. For example, the adoption of Art. 20 a GG, which, for the first time in the FRG’s history, makes environmental protection an explicit constitutional state goal, will appear as a product of the legislature’s attempt to integrate the revolutionary call for constitutional environmental protection into a GG that, prior to unification, did not contain an explicit state goal of environmental protection. The court’s confirmation of the Bodenreform will appear as integrating the East Germans’ will to confirm the Bodenreform into a GG that requires a return of illegally expropriated property to its former owner. The court’s decision to no longer insist on the criminalization of abortions undertaken during the first twelve weeks of the pregnancy will appear as a product of the court’s attempt to integrate the revolutionaries’ call for a right to abortion into a constitutional order under the GG that emphasized the protection of the unborn child and the social effects of criminal law. And so on for gender equality and housing. But I have gotten ahead of myself. In order to prove my thesis step by step, I will, after a brief introduction to Ackerman’s theory of IS and its usefulness for the analysis of constitutional lawmaking in unified Germany (Chapter I), first deal with another misinterpretation: that of the 1989 Revolution itself. As mentioned before, the dominant opinion considers the 1989 Revolution as having resulted in the GDR’s accession to the FRG, accompanied by an unconditional adoption of the GG by the new states. On this basis, the Revolution’s constitutional meaning is reduced to abolishing the GDR and paving the way to German unification without making a substantive contribution to unified Germany’s constitutional law. Drawing on Arendt’s work, Chapter II will show that this is a fundamental misunderstanding. After developing a theory for the constitutional analysis of revolutions, I will demonstrate that, even though the revolutionary East Germans at some point during their Revolution gave up on the idea of reforming the GDR, they adopted and held on to a set of constitutional principles the implementation of which they considered an important goal of their political action. Even though the East Germans 14

Introduction

decided to accede to the FRG and accept the GG, they wanted to preserve and transfer at least some of these principles to the constitutional order of unified Germany. Chapter III will show that the Unification Treaty as well as the new state constitutions served as legal instruments for this transfer. In Chapter IV, I will demonstrate that unified Germany’s legislature and the BVerfG, in acts of integration or synthesis, have taken up revolutionary constitutional achievements and have tried to weave them into the existing tapestry of West German constitutional law. This work tries to rediscover the 1989 Revolution as an important act of political freedom with a profound meaning for unified Germany. It seeks to remind contemporary readers of the Revolution’s constitutional meaning and show where it has and where it has not found expression in unified Germany’s constitutional law. On that basis, the work tries to contribute a new understanding of constitutional lawmaking in unified Germany. The concept of popular sovereignty did not amount to more than idle talk during the adoption of the GG in 1949. Since then, the FRG’s party system has successfully kept democracy strictly representative and has reduced the people’s political role to that of voters on Election Day. The 1989 Revolution and its impact on unified Germany’s constitutional law provide Germans with a completely new political experience: popular sovereignty can work in Germany, not only as a theoretical concept lending legitimacy to the existing political order but as a practical experience of political action. I will show how an important part of the German people engaged in political action to liberate itself from a party dictatorship, adopted a set of constitutional principles, caused institutional reactions, and finally achieved legal manifestation and integration of some of these principles into unified Germany’s constitutional law. This experience should be the basis for more direct participation by the people, not only in constitutional lawmaking but in politics in general.18 Finally, I want to show that constitutional analysis and constitutional interpretation are important tools to keep alive the memory of this unique experience of political freedom in German constitutional history. If constitutional analysis and interpretation are limited to doctrinal and judicial politics arguments, we not only forego an important part of constitutional 18 There are authors who, on the contrary, want to take this experience as a reason to forget about the people’s constitution-giving power entirely, see Henke, Der Staat 1992, 280.

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Introduction

understanding but, in the long run, will forget the meaning of the only successful democratic revolution in German constitutional history.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

“The challenge … is to locate ourselves in a conversation between generations” (Bruce Ackerman, We the People, Foundations, 23).

How can Ackerman’s theory of Intergenerational Synthesis (IS), a theory that has been developed for the understanding of American constitutional law, be relevant for the understanding of constitutional developments in Germany? Ackerman’s theory of IS is based on two major insights that make constitutional lawmaking in the U.S. comparable with recent developments in German constitutional history and law: (i) American constitutional law has been established by the American people in successful revolutionary acts; and (ii) it has developed by way of revolutionary reform, i.e. new constitutional achievements had to be integrated into, and synthesized with, an existing constitutional order. The challenge of understanding existing U.S. constitutional law, in Ackerman’s view, is thus “[t]he challenge … to locate ourselves in a conversation between generations.”19 My analysis will show that understanding unified Germany’s constitutional law poses a comparable challenge because (i) the 1989 Revolution in the GDR was a successful revolutionary act, in which the East Germans established their own constitutional principles (Chapter II) and (ii) at least some of these principles were transferred from the GDR to unified Germany, where they had to be integrated into the existing constitutional order under the GG (Chapter III and IV). In Germany, like in the U.S., a better understanding of existing constitutional law thus requires us to locate ourselves in a conversation between the revolutionary East Germans and the people of the old FRG about how to integrate East German revolutionary achievements into the existing West German constitutional order under the GG. The difference between Ackerman’s analysis of the U.S. and my analysis of Germany is that in the U.S. the conversation is taking place between different generations of a people, while in Germany it is taking place between different parts of a people, East Germans and West Germans. The decisive similarity, however, is that in both cases new constitutional ele19 Ackerman I, 23.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

ments, forged in revolutionary action, need to be integrated into, and synthesized with, an existing constitutional order. Based on this similarity, Ackerman’s theory of IS, applied as an analytical tool, will help us to understand what exactly happened in 1989/1990 in the GDR and how it has affected unified Germany’s constitutional law, even if, in Germany, it is not different generations but different parts of the people who are talking with each other. I will first give an introduction to Ackerman’s theory in order to then explain why and how it can contribute to a better understanding of some of the developments in unified Germany’s constitutional law. A. Ackerman’s theory of IS IS is only one of three elements of Ackerman’s broader theory of constitutional lawmaking in the U.S. The other two elements are “Dualism” and “Constitutional Moment”.20 Dualism is a procedural term.21 It distinguishes between two procedural tracks of lawmaking that differ with respect to the intensity of peoples’ involvement and the quality of the outcome: (i) normal lawmaking and (ii) higher, or constitutional, lawmaking.22 Normal lawmaking takes place during times of normal politics and is characterized by a low degree of peoples’ involvement in politics.23 The people act mainly as private citizens, i.e. they focus on their private lives and leave politics to elected representatives.24The legal outcome of periods of normal politics is ordinary

20 This and the following is mainly based on Bruce Ackerman’s We the People, Foundations (1991) (cited as: Ackerman I, p.). 21 See Ackerman I, 3 ff. 22 Ackerman I, 6 f., 230 ff., 295 ff. The idea of “the duality” of American law and the distinction between “higher law” and “ordinary law” can also be found in Arendt, Civil Disobedience, in: Arendt, Crises of the Republic, 53. 23 See Ackerman I, 230 ff. 24 The emphasis is on private. For the concept of distinguishing between private citizens and private citizens, see Ackerman I, 231 ff., 234. Arendt makes a similar distinction between the citizen, who is “concerned with the public good” and the self, who is “pursuing his private happiness”, see Arendt, Civil Disobedience, in: Arendt, Crises of the Republic, 84. Lorenz v. Stein describes a similar “dualist” behavior of the French people during the 1789 Revolution and its aftermath, see v. Stein, The History of the Social Movement in France, 1789 – 1850, 180 f. V. Stein writes, “With the establishment of the Directory and the Constitution of 1795,

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A. Ackerman’s theory of IS

law. Ordinary law must comply with constitutional law adopted by the people during times of higher lawmaking. Higher, or constitutional, lawmaking is characterized by a high degree of public mobilization over a long period of time during which the people in their role as private citizens provide sustained support for a specific set of principles they consider and accept as fundamental for the political order of the U.S.25 Constitutional moment is a historical and a legal term.26 It stands for historical events during which the people, within an institutional framework, through their sustained activity and support adopt principles and provide them with the quality of constitutional law. The term describes not so much a specific moment in time as a sequence of political events taking place over a longer period of time and consisting of: (i) signaling, (ii) proposing, (iii) deliberating, and (iv) codifying constitutional achievements.27 Intergenerational synthesis is an interpretive term.28 It stands for an act of constitutional interpretation by which the interpreter tries to harmonize different constitutional principles adopted by the people during different constitutional moments in order to synthesize them into a “coherent doctrinal whole … that does justice to the deepest aspirations of each.”29 Based on his critique that the categories dominating the study of the American Constitution have resulted in “a peculiarly ahistorical kind of understanding”,30 and that dominant theories do not reveal the American Constitution’s most distinctive features because they “have not been designed with American constitutional history in mind”,31 Ackerman uses the concepts of dualism, constitutional moment, and intergenerational synthesis to describe the most distinctive features of constitutional lawmaking

25 26 27 28 29 30 31

things quieted down in France. People retreated into private life and began to busy themselves with their property, the real basis of all social development …. While engaged in economic activities, they left all political decisions to the rulers of the state …. While until then the state had been the center of all activities, personal well-being now became the focal point for all individual actions”, see ibid., 180, 181 (my italics). See Ackerman I, 266 ff. Ibid. See ibid., 266, 267, 268. See ibid., 86 ff., 88 ff. Ibid., 94. Ibid., 3. Ibid., 3.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

in the U.S. Accordingly, Ackerman argues, a proper interpretation of the U.S. Constitution demands “a reflective study of the past to determine when the People have spoken and what they have said during their historic moments of successful constitutional politics.”32 In this respect, Ackerman’s approach to constitutional understanding is rooted in Arendt’s work.33 Arendt sees the task of constitutional law in reminding people of the “spirit” of their political acts of foundation. She points out that “[t]o the men of the eighteenth century it was still a matter of course that they needed a constitution to lay down the boundaries of their new political realm … so that their own ‘revolutionary’ spirit could survive the actual end of the revolution.”34 Arendt adds, “For remembrance … is helpless outside a pre-established framework of reference, and the human mind is only on the rarest occasions capable of retaining something which is altogether unconnected.”35 The meaning of constitutional law, according to Arendt, is determined by the “spirit” of the foundational acts, which the law wants to remind us of. To understand constitutional law, we must therefore understand the spirit of the foundational acts. A characteristic of the spirit of American foundational acts is, according to Ackerman, “revolutionary reform”.36 Where other revolutions, such as the French or the Russian, have swept away existing social orders, American revolutions have built upon the existing social and constitutional order by eliminating some elements to replace them with new ones but also holding on to others.37 Due to this characteristic, constitutional understanding becomes an act of remembering the elements of different foundational acts and harmonizing them with each other “in a way that does justice to the deepest aspirations of each.”38 IS is the interpretive tool to do so.

32 Ibid., 17. 33 See also supra, 13 with further references. Ackerman says that he is standing “on the broad shoulders of Arendt and Wood to glimpse a view of the Federalist achievement”, see Ackerman I, 221. 34 Arendt, On Revolution, 126; for the spirit of the American and the French Revolution, see ibid., 221. 35 Arendt, Between Past and Future, 5. 36 Ackerman I, 21. 37 See Ackerman I, 203 ff., 210 f. 38 Ibid., 94.

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A. Ackerman’s theory of IS

However, IS is not only a tool for the interpretation and application of U.S. constitutional law. It is also a tool for the analysis of constitutional lawmaking in the U.S. IS calls upon the analyst to (i) identify the moments during which the people engaged in constitutional lawmaking through revolutionary acts, (ii) define the constitutional principles adopted by the people through these acts, and (iii) harmonize different constitutional principles from different moments of revolutionary constitutional lawmaking with each other. In both capacities, IS contributes to bringing to life the meaning of constitutional law by preserving the memory of the moments of political action during which the people started something new, manifesting the meaning of the people’s action in constitutional principles, and integrating new principles into an existing constitutional order. Ackerman starts his analysis of U.S. constitutional lawmaking by identifying three historical events that he holds to be most determinative of U.S. constitutional law: Foundation, Reconstruction, and New Deal.39 Contrary to the traditional understanding that acknowledges only the Founding as an act of revolutionary constitutional lawmaking by the American people,40 Ackerman sees this quality in all three events.41 According to Ackerman, the Founders were not the only successful revolutionaries establishing a constitutional order based on the Declaration of Independence (1776), the Articles of Confederation (1781), and the Constitution (1787), including the first 10 Amendments (the Federal Bill of Rights) (1791). Reconstruction Republicans and New Deal Democrats, too, engaged “in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth”.42 The constitutional principles adopted by the people during the respective constitutional moments can be summarized as follows: (i) Founding: federalism, i.e. limited national government;43 (ii) Reconstruction: nationalism, egalitari-

39 See Ackerman I, 40 f. In his third volume of We the People, The Civil Rights Revolution, Ackerman has identified the Civil Rights Revolution as another “Constitutional Moment”. At this point, I will limit myself to the three moments elaborated in We The People, Foundations because they suffice to explain Ackerman’s theory. 40 For an overview of the traditional understanding, see Ackerman I, 41 ff. 41 See ibid., 44 ff. 42 Ibid., 44. 43 See ibid., 140, 141.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

anism, and libertarianism;44 and (iii) New Deal: activist government, i.e. “ongoing bureaucratic intervention in economic and social life”.45 Against this background, the Court of the so-called middle republic (i.e. the republic after the Civil War) was faced with the challenge to integrate the Reconstruction Amendments (the 13th, 14th, and 15 th Amendment) into the existing constitutional framework of the Founding. Ackerman calls that “the problem of multigenerational synthesis”46 and explains it as follows: Since the Republicans had repudiated some, but not all, of the Founders’ Constitution, the Republican Justices could no longer rest content with the Marshallian task of elaborating the constitutional vision of the Americans who had fought and won the War of Independence. They would first have to identify which aspects of the earlier Constitution had survived Republican reconstruction. Having isolated the surviving fragments, they would have to synthesize them into a new doctrinal whole that gave expression to the new ideals affirmed by the Republicans in the name of the People.47

In short, the problem of IS is the following: “At Time One, the Founding generation announced X as higher law; at Time Two the Reconstructers Y – where Y is partly, but not entirely, inconsistent with X. How then to put X and Y together into a meaningful whole?”.48 The modern (i.e. the postNew Deal) court is faced with an even more complex problem because it “must confront the fact that the Constitution was revolutionized yet again” during the New Deal.49 To clarify his theory, Ackerman gives some examples of cases in which he thinks the U.S. Supreme Court engaged in acts of IS. For instance, he explains the Court’s decision in Lochner v. New York (1905) as an act of one-two synthesis.50 Ackerman argues the court synthesized the Foundation’s emphasis on states’ rights with the Reconstruction’s emphasis on federal individual rights protection in the language of freedom of contract and protection of property.51 The result, according to Ackerman, was the constitutional right of all Americans to exercise their freedom through

44 45 46 47 48 49 50 51

22

See ibid., 140. Ibid., 141. Ibid., 88. See ibid., 88, 89. Ibid., 90. Ibid., 89. See ibid., 100 f. See ibid.

A. Ackerman’s theory of IS

property and contract.52 Only the New Deal brought “a decisive break with constitutional laissez-faire”.53 An example of an early effort in one-two-three synthesis is Carolene Products’ famous Footnote 4.54 In Carolene the court established the “rational basis” doctrine, according to which “regulatory legislation affecting ordinary commercial transactions” would only be held unconstitutional if it lacked all “rational basis”.55 Thus opening up the economic field to comprehensive government regulation, Carolene, on the other hand, developed “the rhetoric of specificity” in order to protect individual rights of the Founding as listed in the Bill of Rights in a post-New Deal age.56 In Ackerman’s view, the court thereby tried to integrate “the Founding’s affirmation of constitutional liberty (Time One) with the New Deal’s affirmation of activist national government (Time Three).”57 At the same time, the court engaged in one-two synthesis by establishing “the legal fiction that the grand abstractions of Reconstruction’s Fourteenth Amendment [Time Two] ‘incorporated’ the ‘specifics’ of the Founding Bill of Rights [Time One].”58 Finally, Carolene Products also contributed to twothree synthesis by trying “to interpret the meaning of the Reconstruction amendments (Time Two), given the New Deal’s repudiation of a propertycentered ideal of liberty (Time Three).”59 It transferred the Reconstruction’s principle of equal protection from the field of protection of property and freedom of contract to the field of politics by “redirect[ing] the Fourteenth Amendment’s central concern toward the protection of ‘discrete and insular minorities’ against majoritarian ‘prejudice.’”60 Ackerman concludes his examples by sketching the landmark cases of Brown v. Board of Education (1954) and Griswold v. Connecticut (1965) as acts of two-three synthesis and one-three synthesis, respectively.61 Brown considered “the implications of the Fourteenth Amendment [Time Two] for the public school – an institution that had become emblematic of

52 53 54 55 56 57 58 59 60 61

See ibid., 101. Ibid. See ibid., 119 ff. United States v. Carolene Products, 304 U.S. 144, 152 (1938); Ackerman I, 120. Ackerman I, 126. Ibid. Ibid., 127. Ibid. Ibid., 129. See ibid., 142 ff., 150 ff.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

the New Deal’s activist use of state power for the general welfare” (Time Three).62 Faced with the New Deal principle of “activist government” fighting social inequality, the court could no longer hold on to its premise in Plessy that the 14th Amendment’s equal protection clause was limited to formal-legal instead of real-social equality.63 In a New Deal world of activist government, “the schoolchild’s sense of racial inferiority had become a public responsibility, not a private choice.”64 Griswold read the Bill of Rights “to preserve the Founding concern with personal liberty [Time One] in a way that endures in a post-New Deal world of economic and social regulation [Time Three].”65 The New Deal granted government the right to regulate commercial or social projects, but marriage the court considered a “project” of “bilateral loyalty” to which the constitutional value of liberty inherited from the Foundation still applied.66 Applying IS as an analytical tool, Ackerman gives new meaning to landmark decisions by the U.S. Supreme Court, which other authors have understood either doctrinally or as acts of judicial politics.67 B. IS as a tool to analyze constitutional lawmaking in unified Germany Using IS as a tool to analyze constitutional lawmaking in unified Germany will have a similarly enlightening effect. It will show that the 1989 Revolution in East Germany has had an important substantive impact on unified Germany’s constitutional law. Similar to Ackerman’s critique of constitutional understanding in the U.S., I hold the dominant opinion’s understanding of constitutional law in unified Germany to be highly ahistorical. Even though the 1989 Revolu-

62 63 64 65 66 67

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Ibid., 141. See ibid., 146. Ibid., 150. Ibid., 141. See ibid., 155. See ibid., 131 ff. Ackerman’s headings only distinguish between what he calls the “constitutional politics” approach and his own approach of “interpretive synthesis”, see Ackerman I, 132, 133 ff., 142 ff.). I, however, consider Herbert Wechsler’s critique of Brown and the responses by Charles Black and Louis Pollack that Ackerman refers to on p. 144 note 27 also as doctrinal, because they criticize or defend the court by using arguments of both legal doctrine and judicial politics.

B. IS as a tool to analyze constitutional lawmaking in unified Germany

tion and the 1990 Unification are the most extraordinary acts of a political new start in Germany since the founding of the FRG in 1949, the dominant opinion denies these events virtually any impact on unified Germany’s constitutional law. The idea that the 1989 Revolution has brought forth constitutional principles, which unified Germany’s legislature and the BVerfG have taken up and integrated into the existing constitutional order under the GG thereby bringing about fundamental changes in unified Germany’s constitutional law, is, as far as I can see, absent from German constitutional scholarship. IS requires U.S. constitutional analysts to identify historical moments during which the people have engaged in revolutionary acts of constitutional lawmaking and to determine what exactly the people have said during such moments. A proper understanding of unified Germany’s constitutional law similarly requires the constitutional analyst to identify the 1989 Revolution and German unification as political acts of constitutional relevance for unified Germany and to determine these acts’ content. To be sure, so far, unified Germany can look back at only two successful moments of a new start, the founding of the FRG in 1949 (Time One) and the 1989 Revolution/1990 Unification (Time Two). However, that does not mean one can afford to ignore the latter in one’s endeavor to understand unified Germany’s constitutional law. The “rediscovery of the value of citizenship”,68 a factor that Ackerman as well as Arendt hold to be the true spirit of the American Revolution, is, as I will show, the characteristic of the 1989 Revolution. It was the rediscovery of the value of citizenship that brought the East Germans into the streets to face down heavily armed security forces while demanding and exercising their rights as citizens. Moreover, the idea of “revolutionary reform” was very much alive in Germany in 1989/1990. While the 1989 Revolution was destructive with respect to the GDR and its Communist regime, it was reformative with respect to the FRG and its GG. The 1989 Revolution built upon the old FRG’s existing GG by finally adopting it but at the same time seeking to reform it in the Revolution’s own spirit. Citizens engaged in acts of revolutionary reform are thus as characteristic of the 1989 Revolution/1990 Unification as they are of America’s revolutions.69

68 See Ackerman I, 206, 220. 69 See infra, 43 ff., 57 ff.

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Chapter I. Intergenerational Synthesis as an Analytical Tool

Just like Ackerman argues with respect to the U.S. that “our constitutional narrative constitutes us [as] a people”,70 the 1989 Revolution and its constitutional achievements can serve as important integrative and foundational factors in unified Germany. To recognize how the revolutionary East Germans have contributed not only to German unification but to the GG and unified Germany’s constitutional law will provide people in the east and west of unified Germany with a deeper sense of unity. It will make them aware that unified Germany’s constitutional law is not just something given by the FRG and adopted by the East Germans but, at least to some extent, a co-production between the FRG’s foundation and the East Germans’ Revolution brought together in German unification. This understanding shall contribute to keeping alive the memory of the successful 1989 Revolution and its meaning for unified Germany. Following the steps of IS, the next chapter will analyze the 1989 Revolution as a historical event of constitutional relevance. It will show that it was a real revolution that brought forth its own constitutional principles.

70 Ackerman I, 36.

26

Chapter II. Analyzing the 1989 Revolution

“[A] revolution that draws its poetry from the past is condemned to end in depression and dullness. A real revolution is not imitative or histrionic. It’s a real event” (Saul Bellow, Collected Stories, 318).

Opinions differ when it comes to determining the meaning of the 1989 Revolution. Some authors think it was not even a real revolution, at least that it had no constitutional dimension but was an event with primarily, if not exclusively, economic meaning. Such authors describe the event as a “revolutionization of the method of production” (“Revolutionierung der Produktionsweise”), which was only “accompanied and made possible by [the GDR’s] accession to the Federal Republic’s constitutional system.”71 Other authors, choosing a more formal-legal approach, point out that the revolutionary East Germans first pursued a constitutional reform of the GDR but then decided to accede to the FRG and unconditionally adopt the GG.72 Amendments of the GG, they argue, were not wanted but only accepted as far as necessary to bring about unification as fast as possible.73 My thesis for this chapter is twofold: first, the 1989 Revolution was a real revolution, i.e. an event during which the East Germans violated the rules of the existing government in order to bring about fundamental constitutional change by becoming aware of themselves and acting as the sovereign, the constituent power (pouvoir constituant, or verfassungsgebende Gewalt), not only of the GDR but of an important part of Germany in its entirety. Second, with respect to the Revolution’s specific goals, the East Germans did decide in favor of fast accession to the FRG including the adoption of the GG; but they did not decide in favor of an unconditional adoption of the GG. My analysis will show that the revolutionary East Germans adopted their own constitutional agenda, including principles that were not in the GG, and that they wanted to preserve at

71 Offe, in: Joas/Kohli (Hrsg.), 283. 72 See infra, 29 f., 93 f.with further references; Schäuble, in: Guggenberger/Stein (Hrsg.), 294. 73 Ibid.

27

Chapter II. Analyzing the 1989 Revolution

least some of these principles by transferring them to unified Germany and integrating them into the existing constitutional order under the GG. In what follows, I will first briefly summarize other authors’ arguments in order to then develop my own thesis. A. Other authors Some authors deny the 1989 Revolution’s quality as a real revolution. Schäuble, for example, calls it an “unfinished revolution” (“unvollendete Revolution”) because, at least for a transitional period, it left in force some of the existing GDR laws, while a “real” revolution would have completely repealed such laws.74 Walter Kempowski writes that something must have been “wrong” with the 1989 Revolution because “the blood was missing”.75 Other authors argue that the 1989 Revolution, if a revolution at all, was a pure exit, not a voice revolution.76 The breakdown of the GDR’s SED regime and German unification were mainly caused by East Germans leaving, or threatening to leave, the country in order to live under the FRG’s economic system and economic conditions. The Revolution lacked its own voice, i.e. a constructive and substantive constitutional will, and was limited to changing the means of production by acceding to the FRG. Adopting the GG was only a means to that end. This view’s most outspoken defender is Claus Offe, who emphasizes that the Revolution’s driving force was not a push for democracy and freedom but the longing for economic wealth.77 According to Offe, the Revolution’s character was determined by a “revolutionization of the methods of production accompanied and made possible by an accession to the constitutional system of the FRG.”78 He describes the SED regime’s overthrow and German unification as “a process of economic integration characterized by its … meaninglessness in terms of constitutional categories”.79 Offe thinks that the 74 Schäuble, Der Vertrag, 16. 75 Kempowski, 593. 76 For this and the following see Offe, in: Joas/Kohli (Hrsg.), 282 ff., 293; similarly Glaeßner, in: Joas/Kohli (Hrsg.), 70 ff., 87 ff. 77 See Offe, in: Joas/Kohli (Hrsg.), 293; see also Glaeßner, in: Joas/Kohli (Hrsg.), 89, who argues that the East Germans “did not think of constitutional questions“. 78 Offe, in: Joas/Kohli (Hrsg.), 283, 284. 79 Ibid., 284.

28

A. Other authors

East Germans left their political and constitutional fate to the FRG government and must be considered not successful revolutionaries but “bankruptcy assets under a new management”.80 He understands the change in the GDR “not in categories of ‘willing’ but in the category of a historical ‘coincidence’ and the chain reaction caused by it.”81 Finally, there are authors who don’t deny a real, constitutionally meaningful revolution but argue that the 1989 Revolution’s constitutional ambitions were limited to getting access to West Germany’s legal and economic order.82 Jürgen Habermas, for example, calls the 1989 Revolution a “catch-up” (“nachholende”) revolution by which East Germans wanted to make up for “the politically luckier and economically more successful development” of the FRG.83 According to Habermas, the 1989 Revolution was characterized by an “almost complete lack of innovative, forwardlooking ideas” and aimed at returning to democracy and the rule of law in addition to getting access to the capitalistic West.84 Peter Lerche writes that the revolutionary East Germans were motivated, if not by the GG in all its details, by the “principles of the West German legal and economic order as carried by the GG” and thus “at least indirectly accepted the GG in its essence”.85 Authors who acknowledge the Revolution’s constitutional quality usually split the Revolution into two phases. The first phase was determined by the East Germans acting as pouvoir constituant but only in the negative sense of abolishing the existing SED regime.86 The second phase, according to this view, was characterized by a so-called “turnaround within the turnaround” (“Wende in der Wende”) when the East Germans decided in favor of fast accession to the FRG and an unconditional adoption of the GG instead of in favor of a reformed GDR.87 Amendments of the GG were only accepted as technicalities necessary to bring about unification as fast as possible.88

80 Offe, in: Joas/Kohli (Hrsg.), 294. 81 Ibid., 296. 82 In addition to the authors cited in the following, see, for example, Heckel, in: HStR VIII, § 197 Rn 9. 83 Habermas, Die nachholende Revolution, 181. 84 Ibid. 85 Lerche, in: HStR VIII, § 194 Rn 18. 86 Heckel, in: HStR VIII, § 197 Rn 25. 87 See ibid. Rn 28, 37, 38; Würtenberger, in: HStR VIII, § 187 Rn 11, 33, 48. 88 See Heckel, in: HStR VIII, § 197 Rn 28, 29, 38.

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Chapter II. Analyzing the 1989 Revolution

The strongest arguments for this view are (i) a visible change in the people’s acclamations in the streets: from “We are the people” prior to November 9, 1989 to “We are one people” and “Germany united fatherland” afterwards; and (ii) the results of the first free elections in the GDR of the federal parliament, the Volkskammer (VK), on March 18, 1990, when a clear majority voted for the so-called “Alliance for Germany” (“Allianz für Deutschland”), who stood for fast unification and adoption of the GG. Thomas Würtenberger, for example, calls the March 18, 1990 elections “constitutional elections” (“Verfassungswahlen”) and argues that, since they did not bring about a majority for a new constitutionalization of the GDR, they manifested the people’s decision to take over the FRG’s constitutional and economic order.89 B. My thesis I think these authors are mistaken in several respects. First, they look at the 1989 events through the lens of the French Revolution and thereby miss the spirit of the 1989 Revolution. The fact that the French Revolution drowned in blood does not mean that a revolution can only be real if people are being killed. The 1989 Revolution was a real event, the originality of which is expressed in the very fact that the people were peaceful and disciplined and that the people’s bloody violence, so characteristic of the French Revolution, was all but absent in the GDR.90 Moreover, to require the complete abolition of all previous laws in order to consider a revolution real is not only ahistorical (most revolutions did not abolish all existing laws)91 but misses the basic revolutionary idea of the people becoming aware of themselves and acting as the sovereign. The act of a sovereign is

89 Würtenberger, in: HStR VIII, § 187 Rn 33, 48. This view is shared, for example, by Richter, in: Hancock/Welsh (Hrsg.), 93, 100; and Heckel, in: HStR VIII, § 197 Rn 26, 27, 28, 37; see also infra, 93 f. with further references. 90 This is not true for the security forces, who, during the Revolution’s early phase, proceeded violently against demonstrators, see Neubert, 119. 91 The very characteristic of American revolutions is what Ackerman calls “revolutionary reform”, see Ackerman I, 21. Schmitt writes that, since the state continues to exist during a revolution, “previous statutes and degrees, so far as they do not contradict the new regulation, are still directly valid without a special act of acceptance …. Even provisions in previous constitutions can remain in force from that point on as simple statutes”, see Schmitt, Constitutional Theory, 142.

30

B. My thesis

characterized by the fact that the actor is not bound by anything and can thus do whatever she wants.92 So, if the East Germans acted as the sovereign in order to establish a new form of government, that alone would make their act revolutionary, even though they decided to keep in force some old laws. Another mistake is the assertion that the East Germans decided in favor of an unconditional adoption of the GG. This assertion ignores the revolutionaries’ own constitutional achievements and their success in transferring at least some of them to unified Germany. The flaw is based on a misinterpretation of the 1989 Revolution in general and of the outcome of the first free VK elections on March 18, 1990 in particular. The cited authors misinterpret the Revolution because they lack a theory for the constitutional analysis of revolutions. They misinterpret the outcome of the March 18 elections because they do not pay sufficient attention to historical facts. In the following I will first develop a theory for the constitutional analysis of revolutions, based on comparative historical and constitutional experiences with other revolutions. I will then apply this theory to the 1989 Revolution in order to show that (i) it was a real revolution and (ii) it adopted and retained its own constitutional agenda and did not lead to an unconditional adoption of the GG by the revolutionary East Germans. I. A theory for the constitutional analysis of revolutions The question of what makes an event a revolution, and a real revolution at that, is highly controversial.93 This controversy is brought to life in an example by Arendt, who writes that it “has indeed become rather common among modern historians” to assert that “no revolution has ever taken place in America” because revolutions in the modern sense are about “the radical change of social conditions” and the American Revolution never was.94 Arendt’s response to this common view is as simple as it is true: 92 See Grimm, Souveränität, 16 ff.; Schmitt, Constitutional Theory, 127, 128. 93 For an overview of the different positions regarding the American Revolution, see Palmer, The Age of the Democratic Revolution, Vol I, 186 ff. with further references, 232.; see also Ackerman I, 201 ff.; for a detailed analysis of the concept of revolution, see Arendt, On Revolution, 11 ff. and 21 ff. 94 Arendt, On Revolution, 25. The “modern historians” Arendt refers to are led by Charles Beard, see Beard, An Economic Interpretation of the Constitution of the United States (1913).

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Chapter II. Analyzing the 1989 Revolution

“… these theories … are refuted by the simple fact of the American Revolution. For facts are stubborn; they do not disappear when historians or sociologists refuse to learn from them, though they may when everybody has forgotten them”.95 The question therefore is: what are the facts that turn an event into a real revolution? One of the problems that particularly German lawyers seem to have when trying to make sense of the events in the GDR in 1989 is that revolution is not a legal term.96 Hence, one cannot simply subsume the 1989 events under a legal definition in order to decide whether or not they amounted to a real revolution. That, in fact, leads us to the first characteristic of a revolution as not primarily a legal but a political concept. A revolution is, first and foremost, a real event. Saul Bellow writes that “a real revolution is not imitative or histrionic. It’s a real event.”97 As such, a revolution eludes a definition and instead must be explained in terms of characteristics that usually occur but must always be considered in the light of a real event’s originality. R. R. Palmer puts it this way: “Revolution is a concept whose connotation and overtones change with changing events. It conveyed a different feeling in the 1790’s from the 1770’s, and in the 1950’s from the 1930’s.”98 An event’s specific characteristics do not only make it a revolution but also determine the revolution’s constitutional meaning. Looking for further characteristics of a revolution, we find help in Arendt’s work.99 Arendt writes that revolution “was originally an astro-

95 Arendt, On Revolution, 25. 96 Ackerman calls revolution “one of the slipperiest words in the modern political vocabulary”, see Ackerman I, 201. Neither the Reichsgericht (RG) in RGZ 100, 25 ff. nor the Bundesgerichtshof (BGH) in BGHZ 5, 76, 96 ff. define “revolution”. They mainly talk about the legitimacy of the government and the laws established by a revolution. The BGH casually mentions that a revolution is a “violent political overthrow” (“gewaltsamer politischer Umsturz”), see BGHZ 5, 76, 97. Quaritsch asserts that “[t]he revolution is legally defined by a change in the form of government” (“Die Revolution ist juristisch definiert durch den Wechsel der Staatsform”) but does not explain how he has come to that insight, see Quaritsch, VerwArch 1992, 314. 97 See Bellow, 318 (italics in the original). 98 Palmer, The Age of the Democratic Revolution, Vol I, 187 (quotation marks omitted). 99 Since Arendt seems to offer the deepest and most comprehensive analysis of the concept of revolution, I am focusing on her work here. Other authors to be considered are R.R. Palmer, The Age of the Democratic Revolution, Vol. I, 187 ff., 198

32

B. My thesis

nomical term”, which in its Latin meaning designates “the regular, lawfully revolving motion of the stars”.100 When it was first used as a political term in the 17th century, “it was used for a movement of revolving back to some pre-established point and, by implication, of swinging back into a preordained order.”101 The “Glorious Revolution” of 1688 was considered “a restoration of monarchical power to its former righteousness and glory.”102 Thomas Paine thought the American Revolution “had caused men to revolve back to an ‘early period’ when they had been in the possession of rights and liberties of which tyranny and conquest had dispossessed them.”103 Arendt points out that, historically speaking, “the men of the first revolutions were not at all eager for new things”.104 The beginning of something entirely new was only brought about after the revolutionaries, often against the explicit will of the revolution’s initiators, had reached “a point of no return”.105 The aspect of “swinging back into a preordained order” points us in the direction of a second characteristic of a revolution. A revolution is a popular movement during which the people become aware of their original capacity as the ultimate bearer of political power, the sovereign, and act on the basis of that awareness.106 In this original capacity the people are not bound by any rules and are capable of establishing a new form of government.107 It was during the French Revolution of 1789 that Sieyes developed the theory of the people as the constituent power, the pouvoir constituant, and designated the act of becoming aware of that power as “an act of the Revolution”.108 The same doctrine of popular sovereignty

100 101 102 103 104 105 106 107 108

who cites P. Schrecker, Work and History: an Essay on the Structure of Civilization (Princeton, 1948), 206, as describing a revolution as “an unlawful change of the very conditions of lawfulness.” Arendt, On Revolution, 42. Ibid., 42, 43. Ibid., 43; similarly Grimm, Souveränität, 28. Arendt, On Revolution, 45. Ibid., 41. Ibid., 42. For an overview of the historical development of the term “sovereignty”, see Grimm, Souveränität, 16 ff. See Schmitt, Constitutional Theory, 102, 127, 128; Heckel, in: HStR VIII, § 197 Rn 49 f. Schmitt, Constitutional Theory, 126, 127; for an overview of the development of the people’s sovereignty, see Grimm, Souveränität, 35 ff.

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Chapter II. Analyzing the 1989 Revolution

was underlying the American Revolution.109 Carl Schmitt defines the people’s constituent power as “the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence.”110 Referring to the French Revolution of 1789, Schmitt writes, “The people become conscious of their capacity to act politically and provide themselves a constitution ….”111 The French Constitution of June 24, 1793 explicitly stated the people’s constituent power in Art. 28: “A people always has the right to revise, to reform, and to change its constitution”.112 Acting out the awareness of their sovereignty, the people are “not a stable, organized organ”.113 They find together based on the participants’ individual decisions to participate and coordinate their behavior spontaneously. Expressing their will as pouvoir constituant, they are completely free. Schmitt writes that “[t]he constitution-making power is not bound by legal forms and procedures”.114 This accounts for the problem of finding out what exactly the people said when they expressed their will as pouvoir constituant. Schmitt states that, since the people are not organized, “their expressions of will are easily mistaken, misinterpreted, or falsified.”115 According to Schmitt, the natural form of the direct expression of a people’s will is the acclamation, i.e. “the assembled multitude’s declaration of their consent or their disapproval”. 116 He writes, “They can acclaim in that they express their consent or disapproval by a simple calling out, calling higher or lower, celebrating a leader or a suggestion, honoring the king or some other person, or denying the acclamation by silence or complaining.”117 As I will show in my analysis of the 1989 Revolution, the East Germans were much more differentiated in their acclamations. Moreover, they were much more self-confident in that they did not rely on a political

109 110 111 112 113 114

Arendt, On Revolution, 166. Schmitt, Constitutional Theory, 125 (italics in the original). Ibid., 102, 268. Quoted ibid., 140. Ibid., 131 (my italics). Ibid., 128, 138; Grimm, Souveränität, 42, 43; for some limits, see Böckenförde, Staat, Verfassung, Demokratie, 107 ff. 115 Schmitt, Constitutional Theory, 131; similarly Böckenförde, Staat, Verfassung, Demokratie, 101, 102. 116 Schmitt, Constitutional Theory, 131. 117 Ibid., 272 (italics in the original).

34

B. My thesis

leader but on themselves to formulate their political will. Still, their lack of political organization and their spontaneity as well as their acclamations were, as we will see, characteristics of the 1989 Revolution. Another revolutionary characteristic is determined by the goal that the popular movement pursues: public freedom.118 What is that? According to Arendt, public freedom is the possibility of acting politically in a public space. In a state, it is the people’s direct participation in government.119 Referring to Thomas Jefferson, Arendt writes, … ’public happiness’ [or public freedom] … consisted in the citizen’s right of access to the public realm, in his share in public power – to be ‘a participator in the government of affairs’ in Jefferson’s telling phrase – as distinct from the generally recognized rights of subjects to be protected by the government in the pursuit of private happiness.120

In Arendt’s view, public freedom is neither “an inner realm into which men might escape at will from the pressures of the world, nor [is] it the liberum arbitrium which makes the will choose between alternatives”.121 Instead it is “a tangible, worldly reality … created by men … rather than a gift or a capacity”; it is “the man-made public space or market place”.122 As such, public freedom appears as the political implementation of the human free will in the sense of a will that “freely designs ends that are pursued for their own sake”.123 As regards the goal of revolutions, Arendt writes that “the central idea of revolution … is the foundation of [public] freedom, that is, the foundation of a body politic which guarantees the space where freedom can appear”.124 A revolution, thus, does not just aim at political change.125 Its

118 See Arendt, On Revolution, 123 ff.; other terms for the same idea are public or political happiness or public spirit, see ibid., 123, 221. 119 See ibid., 218. 120 Ibid., 127. 121 Ibid., 124 (italics in the original). Arendt, based on the work of Duns Scotus, differentiates between the “free will”, which “freely designs ends that are pursued for their own sake” and the “liberum arbitrium, which is only free to select the means to a pre-designed end”, see Arendt, The Life of the Mind, Part Two/Willing, 132 (italics in the original). 122 Arendt, On Revolution, 124. 123 Arendt, The Life of the Mind, Part Two/Willing, 132 (italics in the original). 124 Arendt, On Revolution, 125. 125 See ibid., 21: “For revolutions, however we may be tempted to define them, are not mere changes.”

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Chapter II. Analyzing the 1989 Revolution

cause is “freedom versus tyranny”.126 Where tyranny is a form of government in which “the ruler … had … banished the citizens from the public realm into the privacy of their households”,127 freedom in the revolutionary sense, i.e. in the sense of public freedom, is “the participation in public affairs”.128 Public freedom must thus be distinguished from liberties, “which are properly called civil rights”.129 Civil rights, such as the freedom of movement, speech, and assembly, are essentially negative and mean freedom from unjustified restraint.130 “All these liberties … are the results of liberation but they are by no means the actual content of freedom”.131 Revolutions in the modern sense in a first step pursue liberation in the sense of freeing the people from the oppression of tyranny.132 But they don’t stop there. Upon liberation the revolutionary people pursue public freedom in the sense of participating in public affairs.133 A fundamental problem of modern revolutions, according to Arendt, is that, even though people pursued and practiced public freedom during the revolution, they gave up on it when it came to the constitutionalization of their revolutionary achievements. When the people wrote a constitution to make revolutionary achievements durable, they were content with civil rights, which are only the rights of subjects to be protected by the government in their pursuit of private, not public, happiness.134 That is exemplified by the American Revolution, the emphasis of which shifted “almost at once” from the contents of the Constitution to the Bill of Rights.135 Arendt writes, “… it shifted, in other words, from public freedom to civil liberty, or from a share in public affairs for the sake of public happiness to a guarantee that the pursuit of private happiness would be protected and furthered by public power.”136 Along with this development goes a development of the revolutionary people from citizens to private

126 127 128 129 130 131 132 133 134 135 136

36

Ibid., 11. Ibid., 130. Ibid., 32, 33. Ibid., 32 (my italics). Ibid. Ibid. See ibid., 33. See ibid., 32. See ibid., 127. See ibid., 135. Ibid.

B. My thesis

individuals, from citoyens to bourgeois.137 This development has had a fundamental impact on the understanding of succeeding generations: “The American dream, as the nineteenth and twentieth centuries … came to understand it, was neither the dream of the American Revolution – the foundation of freedom – nor the dream of the French Revolution – the liberation of man; it was … the dream of a ‘promised land’ where milk and honey flow.”138 Arendt calls it a “monstrous falsehood” that, due to a “failure to remember” and a “failure to understand” the spirit of the American Revolution, contemporary people have come to understand freedom as free enterprise and free consumption.139 Another characteristic related to the word’s original astronomical meaning is a revolution’s irresistibility.140 A revolutionary popular movement becomes irresistible in the sense that, at some point, “it is beyond the human power to arrest it.”141 A revolution’s irresistibility often manifests itself in institutional reactions to the popular movement. Institutional reactions occur in the negative as in the positive sense. In the negative sense, they abolish existing institutions of the old regime. For example, in France the Revolution abolished the institutions of the ancient regime, in America it abolished the institutions of the British Empire, and in the GDR, as I will show, it abolished the institution of the SED party dictatorship. In the positive sense, they force existing institutions to act in accordance with revolutionary demands, reshape existing institutions, or establish new ones. The most outstanding example of the establishment of a new institution is a revolution’s paradigmatic institutional embodiment of public freedom: the councils. From the Parisian Commune of 1871, through the Russian Revolutions of 1905 and 1917, to the German Revolution of 1918/1919, and the Hungarian Revolution of 1956, the revolutionary people established councils (sections, societies, soviets, Räte)142 in sponta-

137 138 139 140

Ibid., 140. Ibid., 139. Ibid., 217. Arendt writes, “When the word first descended from the skies and was introduced to describe what happened on earth among mortal men, it appeared clearly as a metaphor, carrying over the notion of an eternal, irresistible, ever-recurring motion to the haphazard movements, the ups and downs of human destiny …”, see Arendt, On Revolution, 42 (my italics); on the meaning of irresistibility, see also ibid., 47 ff. 141 Ibid., 48. 142 See ibid., 244, 262, 271.

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Chapter II. Analyzing the 1989 Revolution

neous reactions to their desire as citizens to directly participate in the public affairs of the country.143 Some of the councils’ outstanding common characteristics are the following: (i) spontaneously established; (ii) aspire to lay down a new order; (iii) aspire direct participation of every citizen in the public affairs of the country; (iv) cross all party lines and don’t require any party membership at all; (v) become antagonists of the parties and the party system because parties want their programs executed, not average citizens to form and act on their own opinions; (vi) are not centralized but spread all over the country; (vii) develop structures of cooperation through councils at the local, regional, and national level; and (viii) try to establish themselves as permanent organs of government.144 The councils provided the people with a first chance to engage in public freedom and within them an “enormous appetite for debate, for instruction, for mutual enlightenment and exchange of opinion … developed”.145 Still, they were usually regarded as only “temporary organs in the struggle for liberation”,146 “as mere instruments to be dispensed with once the revolution came to an end.”147 The people usually failed to understand that the council system was exactly the new form of government that they had been looking for and that the revolution was providing them with.148 At the end of the day, the council system was always blocked out by the party system.149 A characteristic closely related to a revolution’s irresistibility is violence.150 Arendt argues that “revolutions … are not even conceivable outside the domain of violence”.151 However, in its function as a constitutive

143 See ibid., 262, 263 referring to Anweiler, 6, who writes that the council idea is “… the striving for a preferably immediate, extensive, and unlimited participation of the individual in public life …”. 144 See Arendt, On Revolution, 244, 249, 262 ff., 267. 145 Ibid., 246. 146 Ibid., 249. 147 Ibid., 256. 148 See ibid., 249. 149 See ibid., 246, 247, 248, 265 ff., 268 ff. 150 See ibid., 18. 151 Ibid., 18; for Arendt’s general views on violence, see Arendt, On Violence, in: Arendt, Crises of the Republic, 103 ff. Quaritsch asserts that “the legal term revolution” does not require “the application of violence, not even any illegality or illegitimacy (“… zum juristischen Begriff der Revolution gehört nicht die Gewaltanwendung, nicht einmal irgendeine Illegalität oder Illegitimität …”), see Quar-

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B. My thesis

characteristic of a real revolution, Arendt considers violence not only in the sense of a natural act of brute force that leads to streams of blood (the form of violence that became characteristic of the French Revolution). Explaining the function of violence in a revolution, she also uses the term in the sense of “violating”.152 Violating the rules of the existing government in order to create a new form or government is an important characteristic of a revolution.153 I will show that the 1989 Revolution did not apply violence in the sense of the French Revolution, during which it

itsch, VerwArch 1992, 325. Again, Quaritsch neither justifies nor references his view. 152 See Arendt, On Revolution, 20. 153 See also Arendt, Civil Disobedience, in: Arendt, Crises of the Republic, 77; Palmer, The Age of the Democratic Revolution, Vol. I, 198 with further reference. It is this characteristic of “violation” that distinguishes revolutions from what has come to be known as “popular constitutionalism”. Even though there is “no precise definition of the concept” of popular constitutionalism (Erwin Chemerinsky, In Defense of Judicial Review: The Perils of Popular Constitutionalism, 2004 University of Illinois Law Review, 673 (2004), 675), its core idea is that the “authority to interpret and enforce the Constitution is not deposited exclusively or ultimately in courts (or in any agent of government, for that matter) but remains in politics and with the people themselves. It refers, in other words, to some idea that the people retain authority in the day-to-day administration of fundamental law” (Larry Kramer, Popular Constitutionalism, circa 2004, 92 California Law Review 959 (2004), 961 Fn. 3, quotation marks omitted). For other work on popular constitutionalism see, for example, Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, New York 2004; Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 California Law Review, 1027-1043 (2004); and Mark Tushnet, Popular Constitutionalism as Political Law, 81 Chicago-Kent Law Review, 991-1006 (2006), all with further references. Ackerman’s work in his We the People trilogy is not part of the “popular constitutionalism” literature but instead deals with revolutionary constitutional lawmaking because it is not about the people’s “day-to-day administration of fundamental law” but instead about the people’s involvement in fundamentally changing constitutional law by breaking the rules of the existing constitutional order. This is why, for my work on the 1989 Revolution in the GDR, Ackerman’s and Arendt’s work provide the analytical basis, not the work on “popular constitutionalism”. Neither am I using the term “revolution” in the sense that Jack Balkin, Sanford Levinson, and others are using it (see Jack Balking & Sanford Levinson, Understanding the Constitutional Revolution, 87 Virginia Law Review, 1045-1109 (2001) with further references). They talk about fundamental constitutional change brought about by government institutions, instead of by the people, in violation of the rules of the existing constitutional order.

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appeared as a natural force that swept away all institutions of the ancient regime and finally the revolutionaries themselves. The 1989 revolutionaries consciously connected with the tradition of the American Civil Rights Movement, which was determined by a highly disciplined peacefulness of the people in the streets. The 1989 revolutionaries were peaceful, highly disciplined, but still violent in that they violated the rules of the existing government.154 Finally, the manifestation of revolutionary achievements through law is an important characteristic of revolutions. Arendt writes, “… revolution on the one hand, and constitution and foundation on the other, are like correlative conjunctions”.155 It was through constitutional law that “the men of the eighteenth century” made their revolutionary achievements durable, so that “their own ‘revolutionary’ spirit could survive the end of the Revolution”.156 Whenever revolutionary achievements were not successfully manifested through law, they were usually handed over to oblivion. Arendt writes that “even in America where the foundation of a new body politic succeeded”, the people failed ”to assure the survival of the spirit out of which the act of foundation sprang” by failing to incorporate the institutions of public freedom, the townships and the town-hall meetings, into the constitution.157 Against this background, the characteristics of a revolution may be summed up in a three-element structure of revolutionary constitutional lawmaking: (i) popular movement; (iii) institutional reaction; and (iii) manifestation through law.158 I will now apply this structure to the events in the GDR in 1989/1990 in order to show that it was a real revolution, during which the people adopted their own constitutional agenda that went far beyond an unconditional adoption of the GG.

154 See Heckel, in: HStR VIII, § 197 Rn 10 with further references to the specific norms of the GDR law violated by the revolutionary people; see also Quaritsch, VerwArch 1992, 317. 155 Arendt, On Revolution, 126. 156 Ibid.; see also Schmitt, Constitutional Theory, 101, 102 for the French Revolution and, more generally, Heckel, in: HStR VIII, § 197 Rn 67. 157 See Arendt, On Revolution, 126, 239. 158 For a similar structure of revolutionary constitutional lawmaking, see Ackerman I, 266 ff.; Ackerman II, 3 ff.; and Ackerman III, 41 ff.

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II. Applying the theory to the 1989 Revolution The 1989 Revolution fulfills all characteristics of a real revolution. There was a popular movement initiated by the citizens’ movements and carried by the East Germans demonstrating in the streets. It was a real event during which the unorganized people became aware of their sovereignty and acted upon that awareness by demonstrating in the streets and expressing their constitutional will by acclamation. The people’s will was first directed at liberation, i.e. at liberating themselves from the SED dictatorship’s tyranny. In this respect, the people demanded the SED regime to realize formally already existing individual rights, such as the freedom to travel, freedom of speech, and freedom of assembly, as well as the right to vote in free elections under participation of a multitude of parties and without falsification of election results. Parts of the people sought liberation by leaving the GDR for the FRG. Second, the East Germans demanded and engaged in public freedom. They enforced their access to the public spaces by getting together for political action in the streets and the churches, by forcing the government into talks with representatives directly chosen by the people from the people’s midst, and by establishing and participating in so-called “Round Tables” (“Runde Tische”, RTs). The people established RTs all over the GDR at the local, regional, and national level. These RTs first controlled, then participated in, and, finally, even took over government from the old regime. Third, the people fought for what I want to call individual empowerment. Individual empowerment stands for a set of constitutional social rights and principles that aim at making individual rights a social reality for everyone instead of only a formal-legal position; individual empowerment is therefore also known as “equality of freedom”.159 Fourth, the people demanded environmental protection in the sense of an active government obligation to protect the environment. Finally, they chose German unification and gave up on public freedom. However, they were not content with civil rights in the negative sense as granted by the GG but insisted on individual empowerment and environmental protection. The popular movement proved to be irresistible in that it caused a variety of institutional reactions. Such reactions were partly negative in that the governing SED regime was abolished. Mainly and most impressively,

159 See Ullmann, Verfassung und Parlament, 217; see also infra, 52 ff., 233, 238 f.

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however, they were positive in that RTs were established all over the country, institutions that provided the people with direct and active participation in government at all levels. After the federal elections on March 18, 1990 and the communal elections on May 6, 1990 had brought a clear victory of the party system over the RT system, the newly elected federal government gave up on public freedom. It did not give up, however, on the rest of the Revolution’s constitutional agenda: unification, individual empowerment, and environmental protection. The new government considered it its popular mandate to bring about German unification and to transfer the principles of individual empowerment and environmental protection to unified Germany. These revolutionary achievements found their legal manifestation in laws proposed and adopted in the GDR prior to unification. The 1989 Revolution is generally divided into two phases: a first phase during which the people pursued a new form of government for a sovereign GDR, and a second phase during which they changed their minds and wanted fast unification with the FRG instead of a new GDR. As I said earlier, the dominant opinion asserts that, whatever the revolutionary people may have pursued during the Revolution’s first phase, as of the second phase they gave it all up and focused on one goal and one goal only: German unification through an unconditional adoption of the GG. Following the two-phase structure, I will elaborate on the Revolution’s development, the people’s constitutional agenda, and on how exactly this agenda changed during the Revolution’s second phase. From this analysis it will become clear that the dominant opinion is wrong. 1. First phase of the 1989 Revolution The Revolution’s first phase is characterized by the following elements: a) a popular movement initiated by the citizens’ movements and carried by the people demonstrating in the streets; b) institutional reactions to the popular movement with the breakdown of the SED regime and the establishment of the RTs as new government institutions; and c) legal manifestation of revolutionary achievements in the Social Charter and the Round Table Draft Constitution (RTD).

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a) Popular movement There was a strong popular movement in the GDR that carried the 1989 Revolution. It consisted of two factors: aa) the citizens’ movements as initiators of the Revolution and providers of substantive revolutionary ideas and bb) the people in the streets acting out their newly won political selfawareness. The citizens’ movements developed a constitutional agenda for a new GDR, which consisted of the principles of liberation, public freedom, individual empowerment, and environmental protection.160 The following analysis will show that the people adopted these constitutional principles during the Revolution’s first phase. During its second phase, the people gave up on the GDR as a sovereign state as well as on public freedom. However, they held on to liberation, individual empowerment, and environmental protection. aa) Citizens’ movements Citizens’ movements had initiated the first political opposition in the GDR in the 1980 s and, from there, developed into driving forces of the 1989 Revolution.161 Heinrich Winkler emphasizes the “inspiring effect” these groups had on the people in the GDR and calls them “bearers of the opposition” (“Träger der Opposition”).162 The Ministry for State Security (Ministerium für Staatssicherheit, MfS, or Stasi) estimated the number of people active in citizens’ movements on June 1, 1989 to be 2,500 organized in 160 groups, 150 of which were Christian.163 One of the oldest groups, the “Initiative Peace and Human Rights” (Initiative Frieden und Menschenrechte, IFM), was founded on

160 For a similar concept, see Unger, The Left Alternative, 152 ff. Unger’s project consists of “the deepening of democracy”, “the empowerment of the individual”, and “the democratization of the market”, see ibid., 152. 161 See Neubert, 40 ff., 44 ff.; Kowalczuk, 232 ff.; for an overview of the development of the citizens’ movements in the GDR since the 1980 s, see Wielgohs/ Schulz, in: Joas/Kohli (Hrsg.), 222 ff. with further references. 162 Winkler II, 491. 163 Ibid.

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January 24, 1986.164 The largest group, the “New Forum” (Neues Forum), was founded on September 9, 1989. Starting with 30 people who signed the foundation proclamation (Gründungsaufruf), it had 200,000 registered supporters by early November 1989.165 Other groups, such as “Democracy Now” (Demokratie Jetzt, DJ) and “Democratic Awakening” (Demokratischer Aufbruch, DA), were founded on September 12, 1989 and October 2, 1989, respectively. Initially none of the citizens’ movement groups were political parties.166 They explicitly emphasized their status as citizens’ movements and distinguished themselves from the party system, which, at the time, was represented by the party dictatorship of the SED.167 The citizens’ movements rejected the concept of membership and were open for everyone to participate. They had no highly elaborate political programs ready for implementation but understood themselves as fora for political discourse and the forming of political opinions. Exemplary for this self-understanding is the New Forum’s founding proclamation, which stated that “[w]e establish a political platform for the entire GDR that enables people from all professions, spheres of life, parties, and groups to participate in the discussion and treatment of existential problems of the society in this country.”168 The only opposition groups that were founded as political parties were the “Social Democratic Party of the GDR” (SDP, later renamed SPD) on October 7, 1989 and the “Green Party” (Grüne Partei, GP) in early November 1989.169 By the fall of 1989, the citizens’ movements had developed into a political factor serious enough for the Stasi to conclude that they could no

164 For an overview and a brief description of the most important opposition groups, see Neubert, 70 ff., 193 ff.; specifically on the IFM, see Neubert, 74. 165 Kukutz, 29; Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 233. 166 That changed when it became clear that VK elections were going to be held on Mar. 18, 1990. Preparing for these elections, many citizens’ movements became either parties or so-called “electable associations” (“wählbare Vereinigungen”), see Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 237. 167 See Winkler II, 492 f. 168 See “Gründungsaufruf des Neuen Forums”, in: Kukutz, 57; the original reads: „Wir bilden deshalb gemeinsam eine politische Plattform für die ganze DDR, die es Menschen aus allen Berufen, Lebenskreisen, Parteien und Gruppen möglich macht, sich an der Diskussion und Bearbeitung lebenswichtiger Gesellschaftsprobleme in diesem Land zu beteiligen“, see ibid. 169 See Winkler II, 491; Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 231.

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longer be liquidated and that “operative measures by the MfS [Stasi] with repressive character are not possible because of the development of the situation”.170 On October 4, 1989, seven citizens’ movement groups (Democracy Now, Democratic Awakening, Initiative Peace and Human Rights, New Forum, United Left, SDP, and Green Party) established a common “contact group” (“Kontaktgruppe”) in East Berlin in order to coordinate their activities.171 That it was this contact group, which, only two months later, called for and contributed to the establishment of the Central Round Table (CRT), an institutionalization of the popular movement that would develop into the central steering organ of the GDR government,172 demonstrates the citizens’ movements’ political importance for the development of the Revolution. Some of the citizens’ movements’ constitutional goals for the first phase of the Revolution were indicated in a “Call for an independent GDR” (“Aufruf für eine eigenständige DDR”) of November 26, 1989.173 According to this statement, the Revolution’s goal was “to develop in our country a solidarity-based society in which peace and social justice, freedom of the individual, free movement of all, and the protection of the environment are guaranteed” (“Es geht darum, in unserem Land eine solidarische Gesellschaft zu entwickeln, in der Frieden und soziale Gerechtigkeit, Freiheit des einzelnen, Freizügigkeit aller und die Bewahrung der Umwelt gewährleisted sind”).174 Liberation from tyranny was thus one element of the citizens’ movement’s constitutional agenda. When the citizens’ movements began their work in the 1980 s, tyranny was embodied by the governing SED regime, which “had monopolized for [it]self the right of action [and] had banished the citizens from the public realm into the privacy of their households”.175 Against such tyranny, the citizens’ movements pursued the cause of individual liberty as an important (first) step towards freedom. The citizens’ movements’ fight for liberation is already reflected in a “basic consensus” 170 Quoted from a protocol by the Hauptabteilung XX/4 of the Ministerium für Staatssicherheit (MfS) of September 21, 1989, quoted in: Winkler II, 494. 171 See Winkler II, 529; Neubert, 199; Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 232. 172 See Neubert, 199; Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 232; and infra, 75 ff. 173 See “Aufruf für eine eigenständige DDR”, reprinted in: Schüddekopf (Hrsg.), 240 f.; generally on the citizens’ movements and their programs, see Neubert, 74 ff., 193 ff. 174 “Aufruf für eine eigenständige DDR”, in: Schüddekopf (Hrsg.), 240 f. 175 Arendt, On Revolution, 130.

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(“Grundkonsens”) that the citizens’ movements’ contact group had reached at a meeting on November 3, 1989. It demanded the abolition of the SED’s power monopoly, free and secret elections, freedom of assembly and of association, and freedom of the press.176 All these liberties are essentially negative in the sense that they primarily aim at protecting individuals and institutions against government intrusions. Even the right to free and secret elections is essentially negative because it only protects the voter “against the encroachment of government” but does not grant the chance to actively participate in government.177 It soon became clear, however, that the citizens’ movements were not content with liberation. They were aiming at opening up the public realm to the people so that the people could directly participate in public affairs, i.e. in government. The citizens’ movements, thus, were pursuing public freedom.178 This goal became visible only gradually and that is probably how it developed in the minds of the people in the citizens’ movements as they became more and more successful in activating the East Germans for political action. It started with the citizens’ movements’ call upon all people for active participation in public discourse. The New Forum, for example, called for the participation of more people in the process of reforming society and intended to activate a public discourse between state and society.179 Bärbel Bohley, one of the citizens’ movements’ central figures and co-founder of the New Forum, said that “discourse in the public space was a prerequisite for every change”.180 A common declaration by several citizens’ movement groups on October 4, 1989 called upon all citizens of the GDR to participate “in the democratic renewal” of the country.181 In order to reach the people and engage them in political discourse, the citizens’ movements started to build a network of contact points (Kontaktstellen) and working groups all over the country at all levels of government.182 They formed working groups on all important topics, such as the abolition

176 See Neubert, 199. 177 Arendt, On Revolution, 69. 178 Kukutz writes, “Public was the magic word” (“Öffentlichkeit war das Zauberwort“), see Kukutz, 26. Kukutz emphasizes that the citizens’ movements’ flag ship, the New Forum, wanted to be a “forum for the negotiation of public affairs”, see Kukutz, 27; similarly Izeki, 20 f. 179 See Winkler II, 491, 492. 180 Boley, in: Kukutz, 11. 181 Quoted in Winkler II, 494. 182 See Bohley, in: Kukutz, 13.

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of the Stasi, the economy, human rights, security, education, health, the environment, culture, the media, etc.183 Bringing the people into the public spaces to participate in political discourse, however, was only a first step. With the surprisingly fast collapse of the governing regime, the citizens’ movements became aware that there was a chance for much more than mere discourse. When the citizens’ movements’ contact group called for the establishment of the CRT, it became clear that they wanted the citizens’ direct participation in government, not only at local and regional levels, but at the national level in East Berlin. Some of the citizens’ movements were even thinking of establishing an entirely new form of government, a democracy that would not be limited to representation and the party system but would provide for the people’s direct and active participation in government. This attitude is reflected in a slogan that, according to Bohley, pinpoints the goal of at least parts of the citizens’ movements: “We did not want a piece of the cake, we wanted the entire bakery”.184 Bohley explains that the slogan summarizes the citizens’ movements’ goal not only to participate in [western] consumption but to give the country back to its citizens by developing a new kind of society based on the people’s political potential.185 Parts of the citizens’ movements wanted to develop this political potential by organizing the people in citizens’ movements and working groups instead of political parties. That way, the people could actually participate in politics instead of being limited to voting for and being represented by political parties, who monopolize politics for themselves. These plans demonstrate that parts of the citizens’ movements were critical of the party system as such.186 Their aspired new way of political decision making was a collective forming of opinions in consensual proce-

183 See Bohley, in: Kukutz, 13; for the organizational structures of the citizens’ movements in general, see Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 227 ff., 233 ff. 184 Bohley, in: Kukutz, 9. 185 Ibid., 9 f. 186 See Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 223; Winkler II, 493; Ullmann, Verfassung und Parlament, 111. The citizens’ movements’ critical attitude towards the party system is vividly expressed by Wolfgang Templin, member of the Initiative for Peace and Human Rights, who said about the founders of the new East SPD: “One month later they were like different people. The consultants were scurrying around everywhere. There was already … some sort of a make-believe attitude that made me rather laugh”, Templin, quoted in: Süß, DA 1991, 473.

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dures within which minority opinions were taken into account instead of being blocked out in reductionist voting procedures.187 The RT was the main institutional instrument to realize this new form of government. Wofgang Ullmann, a prominent figure of the citizens’ movements, describes the RTs of the 1989 Revolution as “a highly effective example of the use of consultative and communicative forces” in political decision making.188 Many citizens’ movement groups saw the RTs not as merely tolerated in a situation of emergency but as a permanent, if not the central, institution of government.189 Ullmann, for example, saw RTs in connection with a comprehensive network of citizens’ movements as an organizational tool “to spread democracy into parts of society that the modern party system has long left behind”.190 It is with respect to the citizens’ movements’ fight for liberation and public freedom that the (mostly protestant) churches in the GDR gained importance for the 1989 Revolution.191 The churches, at the outset of the oppositional movement in the early 1980 s and all the way through the development of this movement into a revolution, were the first to provide the public spaces that the people needed for political action. They were the only providers of public spaces in the former GDR that were not immediately controlled by the state, even though the Stasi had its informants also in the churches.192 The churches opened their public spaces to the citizens’ movements, who used them for their work and their communication with the people.193 The first citizens’ movement groups were founded in the 1980 s within the church structures, and the groups and their networks were often identical

187 See Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 226. This is the kind of “impartiality“ that “is obtained by taking the viewpoint of others into account” and that Arendt talks about in her “Lectures on Kant’s Political Philosophy”, see Arendt, Lectures on Kant’s Political Philosophy, 42. 188 Ullmann, Verfassung und Parlament, 120, 121. 189 Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 226, 227. For a different concept of the workers‘ and soldiers‘ councils during the Weimar Revolution 1918/1919, which considered themselves “only a provisional government in the sense of democratic constitutional law”, see Schmitt, Constitutional Theory, 108,109. 190 Ullmann, Verfassung und Parlament, 121, 122. 191 On the churches’ role for the 1989 Revolution, see Neubert, 38 ff.; Ullmann, Vorschule der Demokratie, Kirche und Runder Tisch (1990). 192 Neubert, 39; Izeki, 31 f.; Thaysen, in: Fricke/Lechner/Thaysen, 59, 60. 193 See Neubert, 143, 144, 156.

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with these structures.194 The churches also provided public spaces directly to the revolutionary people as gathering points prior to demonstrations and as rooms for political discourse. In many cities demonstrations were preceded by so-called “peace prayers” (“Friedensgebete”) organized by and held in the churches.195 These peace prayers turned out to be important events in the people’s fight for liberation and public freedom. Intimidated by large numbers of heavily armed security forces and scared by government threats to crack down mercilessly on demonstrators, the peace prayers encouraged the people to step outside and reclaim their sovereignty.196 It were the peace prayers that, in many cases, established a feeling of unity among the people, a feeling that soon developed into a political consciousness driving the people into the streets to acclaim what turned the citizens’ movements into a revolution: “We are the people” (“Wir sind das Volk”).197 Finally, the churches supported the citizens’ movements by actively encouraging the people to leave the privacy of their homes and engage in public freedom. Reading and discussing political texts by Dietrich Bonhoeffer and Martin Luther King during services and peace prayers, the churches stressed the spiritual benefits that come from acting as free citizens and explicitly called upon the people to take political action but also to remain non-violent.198 This role played by the churches seems to mark a revolutionary change in the church’s attitude towards politics. Where, based on Augustine’s thinking, the church and the faithful had traditionally established a “religiously defined public space, which, although public, was not political”,199 the church in the GDR opened its public spaces not only to the faithful but to all people and not only for religious worship but as public spaces in the classical sense, i.e. to engage in public politics. Moreover, by actively encouraging the people to become aware of their role as citizens and to engage in politics, the church deviated from the modern Western understanding of politics as a business of the state pursuing the end of providing people with life’s necessities and with areas of freedom from politics.200

194 195 196 197 198 199 200

See Neubert, 40. See ibid., 156. See ibid., 135, 157. See ibid. See ibid., 135, 159. Arendt, The Promise of Politics, 139. Ibid., 138 ff., 142.

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By opening their doors to the revolutionary people and the citizens’ movements to engage in politics, the church actively contributed to a changed understanding of politics as the exercise of public freedom by citizens. The next pillar of the citizens’ movements’ constitutional agenda was what I want to call individual empowerment. The constitutional concept of individual empowerment is an attempt to reconcile the problem of (economic) necessity, also known as poverty or the social question, with the pursuit of public freedom without making the mistake of applying politics to solve the problem of necessity.201 What does that mean? After the first step of liberation, which is essentially negative and which frees people from tyranny, the next obstacle on the way to public freedom is economic necessity. Economic necessity stands for what is necessary to sustain life. As a social phenomenon, it is expressed by the term poverty. Marx has developed it into a political factor under the term the social question by persuading the poor that their poverty was “the result of violence and violation rather than of scarcity”.202 “Poverty”, Arendt writes, “is a state of constant want and acute misery” that “puts men under the absolute dictate of their bodies, that is, under the absolute dictate of necessity”.203 As such, poverty is a major roadblock on the way to public freedom because it exhausts people’s time and energy and deprives them of their capacity to engage in political discourse, form political opinions, and participate in political decision making. Preoccupied with economic necessity, all that people have time for is to elect representatives and be represented. Arendt writes, “… the ‘continual toil’ and want of leisure of the majority of the population would automatically exclude them from active participation in government – though, of course, not from being represented and from choosing their representatives.”204 But representation is not public freedom. Representation is “no more than a matter of ‘self-preservation’ or self-interest, necessary to protect the lives of the labourers and to shield them against the encroachment of government; these essentially negative safeguards by no means open the political realm

201 For Arendt’s understanding of the relationship between politics and the social question, see Arendt, On Revolution, 112; and Arendt, Ich will verstehen, 87 ff. 202 Arendt, On Revolution, 62, 63. 203 Ibid., 60. 204 Ibid., 68, 69.

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to the many ….”205 The abolition of poverty is thus a conditio sine qua non for public freedom. The abolition of poverty must not be subject to political debate because it is a question of life and death on which men cannot compromise. Within the realm of politics people are free to make decisions based on their opinions. This freedom is necessarily absent where people are under the dictate of necessity and struggle for survival. This is why Arendt wants to solve the social question in the realm of administration.206 Arendt says, “… all the things that really can be calculated – in the realm that Engels called the ‘administration of things’ – are generally social things. That they, as such, should be subject to [political] debates appears to me to be monkey business – and a plague.”207 To clarify her distinction between political and social matters, Arendt refers to housing as an example. She says that access to appropriate housing is a social problem; “there should be no discussion about that everybody is entitled to appropriate housing.”208 A political question would be whether or not the aspect of integration should be considered in providing appropriate housing.209 Arendt concludes that “every attempt to solve the social question with political means leads into terror”210 and “[n]othing could be more obsolete than to attempt to liberate mankind from poverty by political means; nothing could be more futile and more dangerous.”211 These statements have caused some puzzlement in the literature.212 What I think Arendt means is that the question of whether or not poverty must be abolished must not be subject to political debate because it is a question on which people cannot compromise. What she does not mean is that questions from the social realm, i.e. from the realm of people living together (Zusammensein/Leben),213 or from the economic realm cannot be subject to political debate or the engine of peoples’ political activity. For example, the question of how to provide appropriate housing for everyone

205 206 207 208 209 210 211 212

Arendt, On Revolution, 69. Arendt, Ich will verstehen, 89 ff. Ibid., 90. Ibid. Ibid.(my italics). Arendt, On Revolution, 112 (my italics). Ibid., 114 (my italics). See Ackerman I, 208 ff. Ackerman’s puzzlement is shared by Arendt’s long-time friend Mary McCarthy and others, see Arendt, Ich will verstehen, 87 ff., 89 ff. 213 See Arendt, Denktagebuch, Bd. I, 548 [66].

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(e.g., by way of private or public investment) is a political question that must be debated and answered within the framework of a social topic (appropriate housing for everyone). After the political decision has been made (public or private investment), it is an administrative task to devise the most effective way to implement the political decision and achieve the social goal of appropriate housing for everyone. Arendt’s position may thus be summarized as follows: there should be political debate over how to abolish poverty but there must not be political debate over whether or not to abolish poverty. With respect to the American Revolution, I think Arendt neither denies that “a concern for the ‘social question’ has served as the principal engine for engaged public participation by the American people”214 nor that the American revolutionaries had a social and economic program215 or, more generally, “the enormous role the social question has come to play in all revolutions”.216 Arendt’s point is that the American Revolution was not driven by the sheer economic/biological necessity that drove the French masses into the streets in their cry for bread and that deprived them of any chance to engage in political discourse and form political opinions. If the Federalist Papers show anything it is that the American people engaged in political discourse at a very high level. The American Revolution was driven by the American believe in and culture of politics, i.e. in the people’s capacity to form a new government based on mutual promise and consent. It was not driven by the natural urge to prevent oneself from starving. The same holds true for the Reconstruction, the New Deal, and the Civil Rights Revolution. On this basis, the American revolutionaries, time and again, have been able to realize political, but also social and economic, reforms without drowning their revolutions in blood. The citizens’ movements’ constitutional principle of individual empowerment draws the right conclusion from Arendt’s insight that the social question cannot be solved by way of political discourse. It tries to withdraw the social question from the political realm by guaranteeing constitutional social rights.217 Individual empowerment means that the constitu-

214 215 216 217

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Ackerman I, 209. That, however, is how Ackerman understands her, see Ackerman I, 210. Arendt, On Revolution, 21. This is why I think that the traditional argument against constitutional social rights according to which social rights undermine democracy because they make the Constitutional Court instead of the Parliament decide what the government

B. My thesis

tion establishes an individual claim against the government, or at least an objective government obligation, to shape a social environment in which individual constitutional freedoms can become a social reality for everyone. The concept of individual empowerment must therefore be distinguished from the American New Deal concept of activist government. The latter only describes the government’s constitutional authority to interfere with every area of social life as long as it relates to economics. It does not establish a constitutional government obligation, not to speak of an individual constitutional claim against the government, to become active. Individual empowerment, however, in its purest form, establishes a judicially enforceable individual constitutional claim against the government to become active as far as that is necessary to make constitutional rights a social reality for everyone instead of only a formal-legal position. In a somewhat diluted form, it does not establish an individual right but an objective government obligation to do so. Individual empowerment lies at the heart of the citizens’ movements’ revolutionary constitutional agenda. According to Ullmann, the challenge of the future is to reconcile capitalism with democracy and social justice.218 Ullmann rejects Schmitt’s thesis that there is a contradiction between freedom and equality innate to democracy and argues that the 1989 Revolution’s victory over the SED dictatorship has refuted Schmitt.219 The successful Revolution, in Ullmann’s view, justifies and even requires the replacement of a defensive-restrictive (i.e. a negative) liberalism with a “universal” liberalism, which Ullmann defines as “equality of freedom” (“Gleichheit der Freiheit”) in the midst of historical inequality and in particular as “full social and political parity for men and women” (“volle soziale und politische Parität für Männer und Frauen”).220 According to Ullmann, the realization of equality in a social reality of inequality is the specific characteristic of humanity.221 Individual empow-

218 219 220 221

must spend money on (this is the standard argument against constitutional social rights, which can be found in literally every commentary and treatise on German Constitutional Law), is wrong. Since Parliament is the institution for political debate and political decisions, the Constitutional Court is the right institution to decide whether or not government must spend money to abolish poverty because that is a social question. See Ullmann, Verfassung und Parlament, 55. Ibid., 201. See ibid., 217 (my italics). See ibid.

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erment is the constitutional principle through which the citizens’ movements wanted to reach that goal. Everyone should be equally enabled to make constitutional freedoms, including public freedom, a reality. Based on the insight that economic necessity and real-social (and not only formal-legal) inequality prevent public freedom, the constitutional principle of individual empowerment aimed at realizing social justice as a prerequisite for public freedom.222 The citizens’ movements’ specific constitutional means for implementing the principle of individual empowerment were the constitutionalization of (i) real-social instead of only formal-legal equality, particularly for women; and (ii) social rights as embedded in the Social Charter and the RTD, which I will describe later.223 In this context, real equality for women was a particular concern of the citizens’ movements. Ullmann underlines that by pointing to the eminent importance of women for the success of the 1989 Revolution: “It is because of the women’s participation that the Revolution was peaceful and democratic.”224 He emphasizes the role of women, such as Bärbel Bohley, Ulrike Poppe, Vera Wollenberger, Tatjana Böhm, and Ingrid Köppe as the Revolution’s driving forces and providers of political content.225 The women’s importance and the citizens’ movements’ concern for real equality for women found their manifestation in the RTD’s call for a constitutional government obligation to work for real-social equality for women in Art. 3 II RTD.226 Finally, the citizens’ movements pursued the goal of environmental protection. For example, the New Forum stated that it stood for “justice, democracy, peace, and the protection and preservation of nature”.227 The group Democratic Awakening emphasized its environmental commitment already in its name by constituting itself as “Democratic Awakening –

222 Marx and Arendt agree that public freedom cannot be established under conditions of poverty, see Arendt, On Revolution, 62, 139, 222. That public freedom depends on economic conditions was already evident in the Greek polis, where citizens only had time to participate in public politics because their families and slaves did the work and provided for the economic necessities, see Arendt, On Revolution, 114. 223 See infra, 82 ff. (Social Charter) and 85 ff. (RTD). 224 Ullmann, Verfassung und Parlament, 75. 225 Ibid., 75 f. 226 See ibid., 76, 77, 78. 227 See Neubert, 79.

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B. My thesis

social – ecological (DA)”.228 As early as 1988, a specific environmental protection group, the “Green Network Ark” (Grünes Netzwerk Arche), had been founded as part of the citizens’ movements. Its goal was to “improve the exchange of information and the coordination of common activities for the protection of the environment ….”229 The citizens’ movements, at least during the Revolution’s first phase, wanted to develop an independent alternative to the FRG, since they were afraid that the GDR’s accession to the FRG would endanger their constitutional goals.230 For the citizens’ movements, the FRG stood for the values of capitalism and a disregard for the moral values and substantive principles expressed in the citizens’ movements’ constitutional agenda.231 This perception did not so much reflect “a thinking in old dichotomies and structures of the Marxist-Leninist ideology”, as some authors argue.232 It much more expressed serious concerns about the possibility of realizing the citizens’ movements’ constitutional agenda within the FRG’s constitutional order with its emphasis on representative democracy and civil liberties, a rather unspecific social-state clause, and a lack of both social rights and provisions on environmental protection. Authors who consider the citizens’ movements not as political oppositions but instead as social movements overlook two important factors. First, the citizens’ movements’ work for public freedom, i.e. for peoples’ direct participation in government, made them the paradigmatic political opposition to the tyrannical SED regime. Second, under the SED’s dictatorship, the citizens’ movements were the only political opposition in the

228 Ibid., 87 (my italics). 229 See ibid., 84. 230 Representative in this respect is the program of „Democracy Now“. It wanted to establish a “reformed socialist society” as an alternative to the “western consumer society”. It, moreover, wanted to preserve principles, such as “social justice, freedom, and human dignity”; achieve “social consensus in public dialogue”; establish “vivid pluralism”; safeguard “inner peace through the rule of law”; reconcile “economy and ecology”; and prevent “prosperity at the expense of poor countries”. Democracy Now also wanted to “decentralize the economy”, make it “market-oriented”, and enable it “to act within the forms of private property”. Finally, it wanted to put environmental data under public control, see Neubert, 85, 86. 231 See Glaeßner, in: Joas/Kohli (Hrsg.), 86. 232 See ibid.

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GDR at a time when political parties, such as the East CDU, still cooperated with the SED as so-called bloc parties (“Blockparteien”). What is even more important for an understanding of the citizens’ movements’ political importance is that they were not only opposed by the SED regime in the GDR but also by the party system in the FRG. Since the 1970 s all FRG governments as well as all parties in the FRG had refused to support citizens’ movements in the GDR based on the doctrine that the preservation of peace required to refrain from destabilizing the SED regime.233 The FRG government’s attitude towards the citizens’ movements during the 1989 Revolution is reflected in a report of September 1989 by a State Secretary (Staatssekretär) to Chancellor Helmut Kohl, which states that “… the work of old and new groups in the GDR is a far cry from effective opposition work”, “the New Forum will … hardly contribute to mobilization”, and “among the intellectuals participating in the New Forum are no political talents”.234 A secret service report of April 25, 1990 to Kohl is even more outspoken. It states that the citizens’ movements are aiming at “a leveling of society” and are “standing in the way of a new start”, so that “the central question is going to be: can the work of the citizens’ committees be suppressed?”.235 During the Revolution’s first phase, the citizens’ movements and their constitutional agenda were closely connected with the revolutionary people in the streets. The citizens’ movements’ contact group in East Berlin actively called upon the people “to support their demands with their own contributions and actions”.236 In many places it was the citizens’ movements who encouraged the people to attend peace prayers and participate in ensuing demonstrations.237 Moreover, the citizens’ movements provided the people with constitutional ideas. The New Forum, for example, in many places inspired peace prayers and demonstrations with constitutional demands published on flyers. The quest for constitutional principles that would reconcile a market economy with real democracy, individual liberties, social justice, and environmental protection was the thread that connected the citizens’ movements with the people in the streets, as we shall see next.

233 234 235 236 237

56

See Neubert, 43, 59, 60; for the few exceptions to that rule, see Neubert, 60. Quoted in Neubert, 82. See BND-report of Apr. 25, 1990, quoted by Bohley, in: Kukutz, 16 (my italics). See Neubert, 199. See ibid., 193.

B. My thesis

bb) The people in the streets It was the people in the streets who turned the citizens’ movements’ political opposition and its constitutional agenda into a revolution aiming first at liberation from the SED tyranny and then at the establishment of a new form of government. What the people carried into the streets was exactly the real event during which the people as an unorganized factor become aware of their sovereignty and act on that awareness expressing their will by acclamation. These revolutionary characteristics come to live in a fascinating radio coverage of two Monday demonstrations in Leipzig on September 25 and October 10, 1989, respectively: At 5.00 p.m. for the prayer, St. Nicholas Church is bursting with people just as in the previous weeks. We wait outside with hundreds in the courtyard and many more in the Grimmaische Strasse. There is something in the air, a strange feeling of community. The bells are ringing at 6.00 p.m. The church empties. Around 6.45 p.m. the core of the masses begins to move, walks into the pedestrian area of the Grimmaische Strasse. Nobody seems to lead them; they walk over to the Karl-Marx Square between the concert hall and the opera. And suddenly: there are a few thousands. Onlookers join them, the street overflows with people. Cars are forced to stop …. On October 2 it was as in the previous week only now there were three times as many people, this time also older people. One already knew where to go, one already knew what to shout: “We stay here!” and, for the first time, “We are the people”.238

The events show all the characteristics of a real revolution: an ever increasing number of people spontaneously participating in demonstrations without being part of political organizations or being driven by ideologies.239 Instead, the people were driven by the urge to take action in order to liberate themselves from tyranny and reclaim their government.240 Contrary to the revolutions in Poland or the Czech Republic, the 1989 Revolution in the GDR was not built on a prominent political organization, such as Solidarnosc in Poland, or around an outstanding political leader, such as Vaclav Havel in the Czech Republic. Still, more and more people joined the demonstrations spontaneously, carrying the revolutionary movement into ever wider social realms.241 The 1989 Revolution had

238 239 240 241

Quoted by Opp, in: Joas/Kohli (Hrsg.), 212, 213. See Opp, in: Joas/Kohli (Hrsg.), 197. See Tetzner, 51. See Neubert, 170.

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truly “outlived all ideological justifications”242 in that the revolutionary people did not adhere to one of the typical 19th century ideologies, such as nationalism, internationalism, imperialism, capitalism, socialism, or communism.243 Their goal was to overcome such ideologies, particularly the classical east/west, communism/capitalism dichotomies and implement a form of government that would actually improve people’s lives. Winkler brings the Revolution’s real-event character to life when he writes, “Now everybody felt the same. Demonstrating in the streets was a human right. The shout Democracy now! and the singing of [the International’s] Let’s go for the last battle combined what made the moment great. To dare it. Now.”244 Through their common action the people became aware of themselves as the constituent power. Authors who describe the 1989 Revolution as a pure exit instead of a voice revolution overlook an important fact. It is true, dissatisfaction with the political and economic situation in the GDR did drive many people into leaving the country.245 What these authors overlook, however, is that the more people left the GDR, the more people took to the streets to raise a very different voice: “We are staying here” (“Wir bleiben hier”) and “We are the people” (“Wir sind das Volk”).246 These people did not want to leave but to change their country and its form of government. It was the voice and particularly the action of these people that turned dissatisfaction into political action for a new beginning. The GDR security forces did not shoot into the masses because they were impressed by the number of people in the streets in Leipzig, Dresden, and East Berlin, not by the number of people in the FRG’s embassies in Hungary and the Czech Republic.247 The people’s awareness of their sovereignty increased with every demonstration, and their voice was getting louder and louder. This became particularly visible in Leipzig, a city with a history of political opposition

242 Arendt, On Revolution, 11. 243 See Arendt, ibid. 244 Winkler II, 500 (italics in the original); the original reads: “Jetzt empfanden alle das Gleiche. Auf die Straße zu gehen war ein Menschenrecht. Im Ruf Demokratie jetzt! Und im Gesang Auf zum letzten Gefecht klang zusammen, was die Größe des Augenblicks ausmachte. Es zu wagen. Jetzt.” 245 343,854 GDR citizens (out of a population of around 16 million) had left the country for the FRG in 1989, see Tetzner, 133. 246 See Neubert, 102; Winkler II, 491. 247 See Tetzner, 179.

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against the SED regime since 1953.248 It started on September 4, 1989 after the peace prayer in St. Nicholas Church when around 1,000 people came together for the first so-called Monday demonstration, at which, for the first time, the people did not only chant “We want out” but instead “We stay here”.249 From then on an ever increasing number of people participated in demonstrations every Monday following the peace prayers.250 On September 22, 1989, the regime reacted and the government in East Berlin issued an order according to which the “hostile actions” had to be “destroyed at their roots” in order to prevent a mass movement.251 1,500 security forces were dispatched to Leipzig in order to prevent demonstrations on September 25, 1989. Still, some 6,000 people demonstrated that day, and the security forces could not stop them.252 Such small victories increasingly encouraged the people. Further sources of encouragement and self-awareness were the peace prayers preceding the demonstrations and in particular the singing: “We shall overcome”. One participant said, “The singing took away the fear … and a feeling came up that, actually, nothing can happen to us. Suddenly, it was clear: we will make it! We are not just the small, stupid rest that is being left behind here.”253 On October 2, 1989, there were more than 10,000 people demonstrating in Leipzig.254 This was the day on which, in response to the security forces’ violent interference with the demonstrations, the people created what was about to become the Revolution’s battle cry: “We are the people”. Ehrhart Neubert writes that, on this day, the people gave up their role as subordinates and asserted themselves as the sovereign, the constituent power.255 Based on this display of the people’s self-consciousness, the demonstrations gained an important tactical victory when, on October 9, 1989, the number of demonstrators in Leipzig exploded to 70,000, even though on October 7 and 8, 1989 the police had brutally dissolved demonstrations in East Berlin in order to deter the people from demonstrating in Leipzig on

248 249 250 251 252 253 254 255

See Neubert, 100, 101. See ibid., 102. See ibid., 104 ff. See ibid., 105. See ibid., 106. Christa Mihm, quoted in: Neubert, 106. See Neubert, 113. See ibid., 114.

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October 9, 1989.256 Rumors preceding the October 9 demonstrations in Leipzig had said that security forces would crack down on the demonstrators in an attempt to end the entire protest movement, following China’s example in Tiananmen Square only about four months earlier (on June 4, 1989).257 What was even more decisive for the breakthrough in Leipzig on October 9 was the fact that the security forces did not intervene, even though they had explicit orders from East Berlin to “prevent” the demonstrations by applying all “appropriate means”.258 Equally important was Moscow’s decision to not intervene.259 After October 9, 1990, more Monday demonstrations followed, not only in Leipzig but also in cities all over the GDR, such as Dresden, Magdeburg, Halle, and East Berlin.260 The demonstrations once more exploded in numbers of participants: from 300,000 in Leipzig on October 30, 1989 to more than 500,000 in East Berlin on Nov, 4, 1989.261 And the demonstrations were not limited to the big cities; they occurred all over the country. In October 1989 alone, 330 demonstrations took place in the GDR.262 A demonstration in the city of Nordhausen on October 31, 1989, for example, counted 25,000 participants, about 70% of the city’s adult population at the time.263 This was no longer an exit revolution. The people in the streets had given it a voice, and this voice had become loud and clear. What did it say? The revolutionary East Germans expressed their will in two ways: through political action and by way of acclamation. To prevent misunderstanding, I will first elaborate on a fundamental difference between Carl Schmitt and Hannah Arendt with respect to how revolutionary people express their will as pouvoir constituant. I will then apply the insights to the 1989 Revolution. Acclamation, according to Schmitt, is very much focused on a leader or a political elite presenting some kind of political statement to which the people then acclaim either Yes or No. Schmitt writes, “They can acclaim in

256 257 258 259 260 261 262 263

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See ibid., 136; Garton Ash, 67, 68. See Winkler II, 502; for further details, see Neubert, 132 ff. See Winkler II, 503. See ibid., 503, 504; Quaritsch, VerwArch 1992, 326. See Winkler II, 504. See Garton Ash, 68. See Neubert, 165. See ibid.

B. My thesis

that they express their consent or disapproval by a simple calling out, calling higher or lower, celebrating a leader or a suggestion, honoring the king or some other person, or denying the acclamation by silence or complaining.”264 He continues, “Public opinion is the modern type of acclamation …. It is influenced and even made by parties or groups …. In every democracy, there are parties, speakers, and demagogues … the press, film, and other methods of psycho-technical handling of great masses of people.”265 Finally, Schmitt thinks poorly of the people’s political capacity: “It also need not be discussed that the mass of the enfranchised voters can often not be adequately instructed and that they lack the necessary expertise and powers of judgment ….”266 Arendt has a fundamentally different understanding of the people’s capacity to express themselves as the pouvoir constituant. Arendt distinguishes between “the mob” and “the people”. She writes that “the mob always will shout for the ‘strong man,’ the ‘great leader’ … [w]hile the people in all great revolutions fight for true representation”.267 Arendt, moreover, emphasizes that the revolutionary people express their political will not only by way of acclamation but by way of political action, by way of practicing public freedom. Through establishing councils (societies, soviets, Räte), working in them, and thus directly participating in government, the people not only say Yes or No to a political elite’s program; they actually take things into their own hands and actively engage in politics. Arendt writes about the French Revolution, [T]he Revolution taught … the people a first lesson in ‘the notion and taste of public liberty’. An enormous appetite for debate, for instruction, for mutual enlightenment and exchange of opinion … developed in the sections and societies; and when … the people in the sections were made only to listen to party speeches and to obey, they simply ceased to show up.268

The 1989 revolutionaries confirm Arendt’s view not only by practicing public freedom but also by engaging in much more differentiated acclamations than Yes or No to a political elite’s program. The 1989 Revolution saw the people acting, not the mob.

264 265 266 267 268

Schmitt, Constitutional Theory, 272 (emphasis in the original). Ibid., 275. Ibid., 304; for a similar attitude, see Schumpeter, 252 ff., 269 ff. Arendt, The Origins of Totalitarianism, 107. Arendt, On Revolution, 246.

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Practicing public freedom. The people’s practice of public freedom developed in two steps: first, the people went into the streets and participated in a revolutionary movement to establish a new form of government. Second, they founded and worked in Round Tables (RTs), which enabled them to actually participate in and, at some point, even take over government. Contrary to the French Revolution, whose necessity-driven violence had drowned it in blood, the 1989 Revolution was not only an act of liberation but an act of public freedom in and of itself. That had to do with the people’s relationship to violence. Where the revolutionary French people had exercised violence as unlimited brute force, the 1989 Revolution was characterized not only by the people’s non-violence but by a remarkable degree of peaceful discipline on the people’s side. This is exemplified by the fact that the demonstrations in the GDR came to be known as Monday demonstrations because they took place every Monday after work!269 The East Germans continued to go to work and every Monday after work, usually around 5.00 p.m., they gathered for peace prayers and ensuing demonstrations.270 Tetzner, a regular participant in Leipzig’s Monday demonstrations, writes that the protesters completely refrained from violence, did not break a single window during the demonstrations, and did not even leave garbage behind in the streets.271 These were not people driven by economic necessity but citizens fully in control of what they were doing, engaged in a political enterprise. The only violence East Germans engaged in was the violation of the governing regime’s rules that tried to prevent people’s access to the public spaces.272 By participating in the demonstrations, the people reclaimed the public spaces that a tyrannical party dictatorship had foreclosed to them. In their disciplined peacefulness, the East Germans demonstrated that they had

269 See Tetzner, 55. 270 For a detailed day-by-day account of the Monday demonstrations in Leipzig, see Tetzner, Leipziger Ring (2004). 271 See Tetzner, 119, 189, 190. 272 See Ullmann, Verfassung und Parlament, 47, who writes that occupying the building of the VK in East Berlin, the “Palast der Republik”, on Nov. 4, 1989 was an act of violence by the demonstrating people, however, “a very special kind of violence” (“eine ganz besondere Art von Gewalt”). For the specific provisions of the GDR law that the people violated by participating in the mainly unauthorized demonstrations, see Heckel, in: HStR VIII, § 197 Rn 10; and Quaritsch, VerwArch 1992, 317.

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learned what Arendt calls “the most obvious lesson to be learned from the French Revolution”: that terror cannot achieve public freedom.273 Through their political action, the people forced the SED government into negotiations and, step by step, enforced their own access to and participation in government. In a first step, the SED regime agreed to talks with the people in order to dissolve demonstrations.274 A famous example is Dresden on October 8, 1989, where the demonstrating people convinced the city government to agree to a conversation with the people in Dresden’s town-hall.275 The demonstrating people spontaneously chose from among themselves twenty representatives to speak for them.276 These representatives, who later became known as “The Group of 20”, were the first group in the GDR to take up talks with the government.277 These talks were a first step towards the establishment of RTs. The representatives came from different age and professional groups, the youngest being seventeen and an apprentice.278 None of them had been active in any of the opposition groups and only two of them were members of a political party.279 These were ordinary citizens. The topics the group was to address with the city mayor were determined on the spot by the people by way of acclamation. They comprised, among others, freedom to travel, legalization of the New Forum, and the release of people who had been imprisoned during previous demonstrations.280 The Group of 20 declared in a statement, “We do not consider ourselves a new party …. We consider ourselves … mediators of a dialogue between the state and the people in the city of Dresden.”281 After the group’s meeting with the city’s mayor, more than 23,000 people gathered in different churches in Dresden to be briefed on the meeting’s

273 See Arendt, On Revolution, 221, 222. 274 See Neubert, 129 ff. 275 For a detailed account of the developments in Dresden, see Urich, 195 ff.; and Richter/Sobeslavsky, Die Gruppe der 20 (1999); for an impression, see Neubert, 129, 130; for similar developments in other cities, such as Leipzig, Chemnitz, and Plauen, see Neubert, 134, 136, 142, 177. 276 Richter/Sobeslavsky, 55 f., 58. 277 See Urich, 195; Neubert, 130; Richter/Sobeslavsky, 58. 278 See Urich, 197; Richter/Sobeslavsky, 57. 279 See Urich, 198; Richter/Sobeslavsky, 57. 280 See Urich, 198; Richter/Sobeslavsky, 58. 281 Statement of the Group of 20, quoted in: Urich, 201.

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results.282 These results may seem minimal,283 but the talks were an important first step by the people into the public spaces and towards direct participation in government. The next step is equally exemplified by developments in Dresden. The Group of 20, the only group in Dresden with direct access to the city government, was complemented and supported by experts provided by church-based ecological and peace groups in Dresden.284 Thus “professionalized”, the Group of 20 started to coordinate its activities with Dresden’s citizens’ movements and actively called upon all citizens of Dresden to participate in their work.285 The Group of 20 established working groups (“Sektionen”) on different topics286 and on October 26, 1990, for the first time, participated in a session of the city parliament.287 It followed a direct participation by the Group of 20 and citizens of Dresden in the city government through so-called “temporary working groups” (“zeitweilige Arbeitsgruppen”) that were equally staffed with citizens named by the Group of 20 on the one hand and representatives of the city parliament and the city administration on the other.288 These working groups participated directly in the work of the city parliament.289 Representatives of the Group of 20 even participated in an “economic and financial committee” (“Wirtschafts- und Finanzausschuss”) that had the right to veto any financial decision by both the city parliament and the city mayor.290 Springing up spontaneously from the people demonstrating in the streets, the Group of 20 developed into an institution that provided the citizens of Dresden with direct participation in the city government. A further step towards people’s direct participation in government at communal, city, and regional levels was the equally spontaneous establishment of RTs all over the GDR in late 1989 and early 1990.291 Just as in

282 283 284 285 286 287 288 289

See Urich, 205 ff.; Richter/Sobeslavsky, 76 ff.; Neubert, 130, 132, 176 ff. For the specific results in Dresden and other cities, see Neubert, 132, 142. See Urich, 272 ff., 273. See ibid.; Richter/Sobeslavsky, 120. Urich, 274; Richter/Sobeslavsky, 119 ff. See Urich, 275. Ibid., 274 ff.; Richter/Sobeslavsky, 126 ff. Urich, 274 ff.; for a detailed description of the working groups, see ibid., 280 ff.; Richter/Sobeslavsky, 144 ff. 290 See Urich, 419. 291 See Neubert, 286 ff., 300 ff.; Izeki, 29, 52 with examples of the cities of Rostock, Güstrow, and Malchow; Thüringer Landtag (Hrsg.), Die „Runden Tische” der

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Dresden, many of these RTs were preceded by talks that the demonstrating people and the citizens’ movements had forced upon the government in October 1989.292 Others were preceded or accompanied by so-called citizens’ councils that, for example, the city of Rostock’s government had been forced to accept.293 The RTs consisted of representatives of all political groups in the community, city, or region, including members of the SED and the old bloc parties.294 The RTs established specialized working groups and worked on all relevant issues, such as human rights violations, education, housing, health care, and environmental protection.295 In Rostock, for example, the city mayor briefed the RT on all important issues in the city. The RT established working groups on specific issues, chose representatives to control the work of the city parliamentarians, and finally forced the city mayor to step down and replaced him with an RT member.296 The RTs explicitly encouraged all citizens to participate in their working groups and commissions.297 Bohley gives a vivid first-hand account of the nature of the RTs and their work, which demonstrates their striking similarity with the councils of previous revolutions: The Round Tables and the newly formed working groups acted … independently based on the same principles. The spontaneous basis for their work was always self-organization, substantive self-determination, mutual non-vio-

292 293 294 295 296 297

Bezirke Erfurt, Gera und Suhl (2009) with examples of regional RTs for the regions of Erfurt, Gera, and Suhl; Lintzel, Einhundertneunzig Tage (1997) with an example of the region of Halle; Weil, Verhandelte Demokratisierung (2011) with a detailed description and analysis of the regional RTs. For an overview of the historical, political, and sociological literature on RTs, see Weil, Verhandelte Demokratisierung, 16 ff. The names of the new institutions varied from “Round Tables” to “consultative groups”, “citizens’ councils”, “citizens’ committees”, “commissions”, “dialogue fora”, or “citizens’ initiatives”, see ibid. Most prominent, however, was the name “Round Table”, see Neubert, 286. The scope of their work covered the wide variety of public government and administration, from overseeing still existing governmental institutions to participating in these institutions to replacing these institutions and taking over their tasks. Many Round Tables developed new tasks and projects based on practical requirements, see the above cited sources as well as Bohley, in Kukutz, 13, 14. See Neubert, 286; Izeki, 60 ff., 63 ff. (with specific examples for the city of Rostock). See Izeki, ibid. For the city of Rostock, see Izeki, 64. See ibid., 65; Neubert 287 f. See Izeki, 65 ff. See, for example, Schmidtbauer, 115, 116 for the RT for the city of Rostock.

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lence, the ability for political consensus, a sense of social orientation, and social solidarity. The work was not only fruitful but oftentimes nerve-wracking because who was not sitting around these tables and in the working groups! The expert right next to the well-meaning crackpot or obstructionist, the anxious right next to the impatient, the former official right next to the former outcast. Nevertheless, the work … was a democratic practice.298

Tadahisa Izeki concludes that, through the RTs, “the citizens … proved their ability to engage in immediate politics”.299 Francesca Weil says that the RTs allowed the citizens to engage in “political self-determination” (“zivilgesellschaftliche Selbststeuerung”).300 And Neubert writes about the people’s work at the RTs that “[t]he experience of democratization, the growing possibilities of self-determination, and free speech were experienced as happiness.”301 This sounds very much like the kind of “public happiness” that Arendt and Jefferson write about and that, according to them, consists “in the citizen’s right of access to the public realm, in his share in public power … as distinct from … the pursuit of private happiness”.302 The East Germans’ experience with their involvement in the RTs is yet another proof of the existence of such public happiness. When Arendt writes, “What actually happened … was a swift disintegration of the old power … and, at the same time, the amazing formation of a new power structure which owed its existence to nothing but the organizational impulses of the people themselves”,303 she refers to the councils of the Parisian Commune of 1871, Russia in 1905, Germany in 1918/1919, and Hungary in 1956. She might well be writing about the RTs of the 1989 Revolution in the GDR.304 Acclamation. The people also expressed their will by way of acclamation. Here, too, the East Germans confirm Arendt’s view by engaging in much more differentiated acclamations than Yes or No to a political elite’s

298 299 300 301 302 303 304

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Bohley, in: Kukutz, 14. Izeki, 88. Weil, Verhandelte Demokratisierung, 231. Neubert, 289 (my italics); Neubert uses the word “Beglückung“. Arendt, On Revolution, 127. Ibid., 256, 257. For a brief analysis of the council systems of other revolutions of modern times, see Weil, Verhandelte Demokratisierung, 211 ff.; for a comparison of the RTs of the 1989 Revolution with the councils of the German Revolution of 1918/19, see ibid., 216 ff.

B. My thesis

program. The 1989 revolutionaries showed the world that Germans, acting as pouvoir constituant, are capable of saying more than Yes or No or Heil.305 They developed a culture of singing and chanting that drew a highly differentiated picture of their political will.306 First, they wanted liberation by demanding civil rights, such as the freedom to travel, freedom of speech, and the freedom of assembly.307 However, the acclamations were not limited to liberation but immediately called for public freedom. By demanding “Admit New Forum”, the people called for the official legalization of the citizens’ movement’s flagship that clearly stood for citizens’ direct participation in government.308 Moreover, by singing “We shall overcome”, the revolutionary people connected themselves with the American Civil Rights Movement of the 1960 s.309 The American Civil Rights Movement was characterized by a religiously inspired peacefulness of the demonstrators, a key feature of the 1989 Revolution.310 Most importantly in terms of political content, however, the American Civil Rights Movement did not stand for simple liberation in the negative sense of civil rights protection against government intrusions. It went much further than that and tried to develop the New Deal principle of activist government into a constitutional concept that makes individual rights and liberties a social reality for everyone, including black Americans.311 In short, the Civil Rights Movement stood for a version of the constitutional principle of individual empowerment. Therefore, the dominant opinion in Germany is wrong to interpret the people’s singing of “We shall overcome” as a call for constitutional liberties in the sense of civil rights as granted by the GG. What the demonstrators really related to was the citizens’ movements’ constitutional concept

305 Carl Schmitt didn’t live to see this. He died in April 1985. 306 I say this in full acknowledgement of the interpretive problem that Schmitt points out, see Schmitt, Constitutional Theory, 131. 307 See Winkler II, 507; Neubert, 161. 308 See Winkler II, 507; Neubert, 167; Tetzner, 11. 309 See Tetzner, 155, 156. Neubert writes that the 1989 revolutionaries, through their songs and chants, placed themselves within the tradition of the 1789 French Revolution, the Russian Revolution of 1917, and the American Civil Rights Movement, see Neubert, 107. 310 Neubert points out that in Dresden on Oct. 7, 1989, the Catholic Church distributed leaflets among the demonstrators informing them about the “Strategy of non-violence according to M.L. King”, see Neubert, 152. 311 See Ackerman III, 185, 186.

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of individual empowerment; they called for a constitutional state obligation to generate a social environment in which constitutional freedoms can become a social reality for everyone. The song “We shall overcome” was originally “I’ll be Alright” and had been sung by striking Tobacco Workers. It became famous as a revolutionary song after Joan Baez had sung it in 1963 during the Civil Rights Movement’s “March on Washington for Jobs and Freedom”. The march’s name already indicates that the movement was about more than just freedom in the sense of civil rights. Let us not forget: civil rights had been part of the U.S. Constitution since 1791; formal-legal equality had been part of the U.S. Constitution since 1868, when the 14th Amendment’s equal protection clause was adopted as a result of America’s First Reconstruction. The problem with civil rights and formal-legal equality had been that they had had no practical impact on many people’s real lives, because they did not eliminate discrimination as a fact of social reality. U.S. Supreme Court decisions, such as most prominently Plessy v. Ferguson (1896),312 had emphasized that legal discrimination and social discrimination were two entirely different things and that the 14th Amendment’s equal protection clause only prohibited legal discrimination. Based on this constitutional concept, a racially segregated society had been held constitutional. What the American people took to the streets for during the Civil Rights Movement was the demand to turn constitutional rights into a social reality for everyone. This is reflected, on the one hand, in the Supreme Court’s decisions of Brown v. Board of Education (1954/1955),313 which held the government constitutionally obliged to actively desegregate racially segregated public schools.314 On the other hand, it is reflected in landmark statues, such as the Civil Rights Act of 1964, which applied the principle of non-discrimination to private employers and providers of public accommodation, the Voting Rights Act of 1965, which aimed at real equality with respect to the right to vote, and the Fair Housing Act of 1968, which aimed at real equality with respect to housing.315 What I call individual empowerment, Ackerman describes as a product of a synthesis of New Deal elements

312 Plessy v. Ferguson, 163 U.S. 537 (1896). 313 Brown v. Board of Education, 347 U.S. 483 (1954); 349 U.S. 294 (1955). 314 For an extensive analysis of the meaning of Brown for the American Civil Rights Movement, see Ackerman III, 48 ff., 127 ff., 229 ff. 315 For an extensive elaboration on these legislative landmarks and their relationship with Brown, see Ackerman III, 127 ff., 154 ff., 174 ff., and 200 ff.

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with elements of the Civil Rights Movement: “… the distinctive aspirations of the New Deal-Civil Rights regime [were] to bridge the gap between the egalitarian ideals expressed in the law books and the everyday realities of the job market”316 and “… the Second Reconstruction was moving beyond abstract legal promises to attack the entrenched injustices of everyday life”.317 This is the legacy the people in the streets of the GDR self-consciously referred to by singing “We shall overcome”. The same basic call for individual empowerment through a constitutional state obligation to make constitutional rights a reality for everyone is repeated in the demonstrators’ chanting the three principles of the French 1789 Revolution: “freedom, equality, brotherhood”.318 Arendt has made it very clear that the French Revolution of 1789 was not only about liberation in terms of civil rights, but also, to an important extent, about the fight against economic necessity and for social justice.319 My interpretation of the East Germans’ acclamations is finally supported by the people’s singing of the “International”, or, more specifically, the International’s refrain: “Peoples, hear the signals,/let’s go for the last fight,/the International fights for the human right”.320 The singing of the International during the 1989 Revolution is particularly remarkable since it was this song that the SED regime had made the East Germans sing on every thinkable official occasion. Now, that the very people were engaging in a revolution to overthrow the SED regime and establish a new form of government, they were singing the same old song. Why? The people wanted to send a clear message: the SED regime was only formal-legally a government aiming at supporting the individual to realize her full potential. As a fact of social reality, however, it was a one-party dictatorship that had deprived the individual of her human dignity. The people sang the International, together with the other songs, to express their will to establish a new form of government that would make human dignity, social jus-

316 317 318 319

Ackerman III, 185, 186. Ibid., 209. See Neubert, 107. See Arendt, On Revolution, 59 ff.; see already v. Stein, The History of The Social Movement in France, 1789 – 1850, 111 ff. 320 This is my translation of the German version that goes: “Völker, hört die Signale,/auf zum letzen Gefecht,/die Internationale erkämpft das Menschenrecht”, quoted in: Winkler II, 499.

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tice, and the possibility for individual self-realization a social reality for everyone. By self-consciously associating themselves and their political actions as the pouvoir constituant with the American Civil Rights Movement, the French Revolution, and the Russian Revolution, the revolutionary East Germans emphasized once more that they had “outlived” all ideologies. They expressed their will to transcend the classical east/west, communist/ capitalist dichotomies in order to establish a form of government that would, at long last, make freedom and equality a reality instead of empty talk. Finally, the people expressed their constitutional will on banners they carried during the demonstrations.321 Some authors argue the people had inscribed their political “action program” (“Aktionsprogramm”) on these banners.322 The banners demanded, among other things, “revolutionary transformation” (“revolutionäre Umgestaltung”),323 freedom to travel, unlimited democracy, unlimited socialism, and environmental protection.324 That the East Germans, on the other hand, were rather critical of the FRG’s political, economic, and constitutional system is reflected in a poll taken by the West German news magazine Der Spiegel in cooperation with the West German broadcaster ZDF and published in Der Spiegel on December 18, 1989.325 The poll shows that the East Germans held the GDR to be superior to the FRG in the following fields: protection against unemployment, provision of housing, protection against crime, competitive sports, equal protection of women, education, provision of day care, protection against drugs, and social security. These results do not so much reflect the people’s satisfaction with the actual situation in the GDR as they highlight the issues East Germans thought needed improvement in the FRG. Similar issues reoccurred in polls taken upon German unification in which East Germans named labor, housing, and social security as their most pressing concerns.326 85% of the East Germans polled were in favor of entering a “right to labor” into unified Germany’s constitution, 90%

321 322 323 324 325 326

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See Neubert, 145, 166 ff. with further references. See Tetzner, 69, referring to Bernd-Lutz Lange. See Neubert, 147. See Tetzner, 51. Der Spiegel, 43. Jg. (1989), Nr. 51 v. 18. Dezember 1989, 87. See Noelle-Neumann/Köcher (Hrsg.), 650.

B. My thesis

wanted a constitutional “right to housing”, and 83% supported a constitutional “right to a place in a day care”.327 From this it must be concluded that a real revolution took place in the GDR in the fall of 1989 and that, during this Revolution’s first phase, a popular movement formulated a constitutional agenda that aimed at liberation from tyranny, public freedom, individual empowerment, and environmental protection. The Revolution, carried forward by ever increasing numbers of people, developed an irresistibility that forced institutional reactions. These institutional reactions, as I will show next, were both negative in that existing institutions were abolished and positive in that new institutions were established or existing ones fundamentally changed. b) Institutional reactions There is one event during the 1989 Revolution that is paradigmatic for the Revolution’s irresistibility in the sense of forcing institutional reactions: the opening of the Berlin Wall on November 9, 1989. It was provoked by a misunderstanding by Günter Schabowski, the GDR’s Central Committee’s Secretary in charge of the media, who, during a press conference on November 9, 1989, declared that a new regulation granting GDR citizens the freedom to travel entered into force immediately, even though the regulation was not supposed to enter into force before November 10 in order to provide for enough time for the orderly issuance of necessary travel documents.328 Since the press conference was broadcast live, by 10.00 p.m. several 10,000 East Germans had come to the checkpoint on the Bornholmer Strasse in East Berlin just to see what was going on. When, at 11.00 p.m., the FRG TV announced that “the gates of the wall are wide open” (even though they were not), the number of people gathering at the checkpoints on both sides of the wall became so large that the border police were no longer able to control the crowds. Lacking clear instructions from their government, the GDR border police, at some point, simply gave up and let the people pass uncontrolled, first in the Bornholmer Strasse and then at every other checkpoint in Berlin.

327 See ibid., 567. 328 See for this and the following Neubert, 218 ff.; Winkler II, 510 ff.

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Heavily armed GDR soldiers who had been dispatched to prevent that from happening were sent back to their barracks.329 Interestingly, this was the only occasion on which West Germans actively participated in the Revolution by coming out of their private homes and flooding the checkpoints in West Berlin.330 The event shows that, by November 1989, the Revolution had developed into a popular movement that was “beyond human power to arrest it”.331 It had become irresistible. Other institutional reactions were equally important and similarly paradigmatic for the Revolution’s irresistibility: (aa) the abolition of the SED regime on the one hand and (bb) the establishment of RTs in general and the CRT in particular on the other. These institutional reactions implemented two fundamental elements of the popular movement’s constitutional agenda during the Revolution’ first phase: liberation from tyranny and public freedom. aa) Abolition of the SED regime The “swift disintegration” of the SED regime accompanied by “the amazing formation of a new power structure” consisting of the RTs is yet another characteristic that the 1989 Revolution shares with other revolutions of modern times, such as the French, Russian, German, or Hungarian Revolutions.332 Trying to preserve as much power as possible faced with the people’s revolutionary action in the streets and the Soviet Union’s refusal to intervene, the SED regime’s first reaction was to oust Erich Honecker in midOctober 1989.333 Honecker was replaced with Egon Krenz, Honecker’s designated successor, who tried to buy time by promising reforms.334 Again, it was the West German party system, represented by Chancellor

329 See Neubert, 221. 330 See ibid., 223. For the rest of the 1989 Revolution it is fair to say that it was exclusively enacted by the East Germans. West Germans mostly watched it on TV. West Germans visited the GDR after the opening of the wall; however, as a matter of fact, there was no mass-movement in the FRG in support of the 1989 Revolution. 331 Arendt, On Revolution, 48. 332 See ibid., 256, 257; Tetzner, 73. 333 See Neubert, 145 ff.; Winkler II, 503, 504, 505. 334 See Winkler II, 505; Neubert, 145 ff.

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Helmut Kohl, that initially supported Krenz in an attempt to stabilize the situation. Kohl offered Krenz cooperation and publicly announced that by replacing Honecker with Krenz the SED had accommodated the peoples’ quest for change and that it was now important that Krenz would implement necessary reforms.335 However, it turned out to be too late for the party establishment to turn the tide. Mistrustful of Krenz, whom the people considered a typical representative of the SED dictatorship,336 the demonstrations spread across the entire country and exploded in numbers of participants, as described above.337 In response to these developments, a significant part of the SED decided to join the Revolution in order to at least preserve the party and its participation in power.338 Giving in to the people’s demands, Krenz stepped down as “Chairman of the State Council” (Staatsratsvorsitzender) on December 6, 1989 and was replaced with Manfred Gerlach.339 Hans Modrow, upon the SED’s Central Committee’s (Zentralkomitee) proposal, had been elected “Chairman of the Council of Ministers” (Vorsitzender des Ministerrats)340 by the VK on November 13, 1989.341 Modrow had been SED District Party Chairman (Bezirksparteichef) in Dresden and was considered the party’s reform candidate.342 Some even saw in him the GDR’s Gorbachev.343 It had been Modrow who, as SED District Party Chairman in Dresden, had been the first to agree to talks between the demonstrating people and the city mayor that had led to the foundation of the Group of 20 in Dresden.344 Modrow’s goal as Minister President was to keep the SED in power but also to establish the legal basis for a transfer to democracy.345 The Modrow government’s power was seriously undermined by the Central Round Table’s (CRT) foundation on December 3,

335 336 337 338 339 340 341 342 343 344 345

See Winkler II, 506. See ibid.; Neubert, 146. See supra, 59 f. See Winkler II, 507, 508. See ibid., 529; Neubert, 262, 263. The Chairman of the Council of State (Staatsratsvorsitzender) was like a President of the GDR. He was the state’s highest representative. Comparable with a Minister President. See Süß, DA 1991, 596; Winkler II, 521. See Süß, DA 1991, 596. See ibid., 597 note 3 referring to a Soviet diplomat. See Süß, DA 1991, 599; Neubert, 129, 130; for the Group of 20, see supra, 63 f. See Süß, DA 1991, 600.

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1989. Its power was all but abolished on January 15, 1990, when the pressure from the streets forced Modrow to ask the CRT to participate in what came to be known as the “government of national responsibility”.346 In an act of liberation, the popular movement had abolished the SED party dictatorship. The positive, i.e. constructive, institutional reaction to the popular movement was the establishment of RTs. bb) Round Tables I have already described the local and regional RTs as institutionalizations of public freedom.347 These RTs were a result of the people’s spontaneous reaction to political and administrative necessities at the local and regional levels of government. Providing citizens with direct participation in government outside the party system, these RTs shared important characteristics with the councils of other revolutions of modern times, about which Arendt writes, “the remarkable thing about the councils was of course not only that they crossed all party lines, that members of the various parties sat in them together, but that such party membership played no role whatsoever. They were in fact the only political organs for people who belonged to no party.”348 What the RTs were at the local and regional level, the so-called “Central Round Table” (Zentraler Runder Tisch, CRT) was at the national level. It provided all political groups in the former GDR and, through an ongoing dialogue with the people in the streets, the people themselves with direct participation in the national government.349 Like the local and regional RTs, the CRT started out as an institution to control the SED government which, at least formally, remained in power for the time being. And, like

346 See Süß, DA 1991, 604; Neubert, 330. 347 See supra, 64 ff. 348 Arendt, On Revolution, 263; for a similar conclusion with respect to the CRT, see Izeki, 42; for a different point of view, see Henke, Der Staat 1992, 265, who perceives of the CRT as the paradigm difference between the 1989 Revolution and the other “European revolutions since 1789” because the CRT embodies the 1989 Revolution’s peacefulness. 349 For a history of the CRT, see, for example, Thaysen, Der Runde Tisch (1990); Thaysen, in: Fricke/Lechner/Thaysen, 55 ff.; Herles, H./Rose, E (Hrsg.), Vom Runden Tisch zum Parlament (1990); Süß, DA 1991, 470.

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its lower level counterparts, the CRT quickly developed into an institution that directly participated in and, at some point, even took over the government. The CRT was initiated by the citizens’ movements. In the light of RT structures springing up in Dresden (October 8, 1989) and all over the country,350 the citizens’ movements’ contact group,351 in a declaration dating from November 10, 1989,352 demanded the establishment of a CRT. The CRT came together for its first meeting in East Berlin on December 7, 1989.353 The invitation to this meeting had come from the churches in the GDR who, moreover, sent three representatives to serve as moderators without voting rights.354 The SED as well as the bloc parties (CDU, DBD, LDPD, NDPD) had joined the initiative in late November 1989.355 The CRT was composed of new and old political groups on the basis of parity.356 The new groups were Democratic Awakening, Democracy Now, the Green Party, the Initiative Peace and Human Rights, New Forum, the Social Democratic Party, and the United Left, later complemented by the Green League and the Independent Women Alliance.357 The old groups were the SED/PDS, CDU, Liberal-Democratic Party Germany, NationalDemocratic Party Germany, and the Democratic Farmers Party Germany, later complemented by the Free German Alliance of Unions and the Alliance of Mutual Farmers’ Support.358 The people themselves were not only represented but, through citizens’ movement groups, actually present.359 They, moreover, exercised direct influence through direct communications with the CRT. An example of such direct communication is an event that occurred during the CRT’s constitutive meeting on Decem-

350 351 352 353 354

355 356 357 358 359

See supra, 63 ff. See supra, 45. See Thaysen, in: Fricke/Lechner/Thaysen, 62; Winkler II, 529. See Neubert, 280; Winkler II, 529; Thaysen, in: Fricke/Lechner/Thaysen, 68. See Thaysen, in: Fricke/Lechner/Thaysen, 63; Fiedler, in: HStR VIII, § 184 Rn 28. The Catholic Church had sent Karl-Heinz Ducke, the Working group of Christian Churches had sent Martin Lange, and the Federation of the Protestant Church had sent Martin Ziegler, see Thaysen, Der Runde Tisch, 32, 36. See Winkler II, 529. The “bloc parties” and the SED had been united in the socalled “Democratic Bloc” (“Demokratischer Block”), see Süß, DA 1991, 471. See Thaysen, in: Fricke/Lechner/Thaysen, 64 ff. See ibid.; Fiedler, in: HStR VIII, § 184 Rn 28 note 63. See Thaysen, in: Fricke/Lechner/Thaysen, 64 ff.; Fiedler, in: HStR VIII, § 184 Rn 28 note 64. Weil, Verhandelte Demokratisierung, 217.

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ber 7, 1989. While the meeting was under way, a demonstration took place right outside the building.360 The CRT delegates became very nervous, not knowing whether the people would accept the CRT or come in and end it.361 After a while the demonstrators moved on, and Ullmann, one of CRT participants, said “… let’s learn from this and let’s put our money where our mouth is. They are shouting because they want a result.”362 The CRT’s role as an institutionalization of public freedom is also revealed in a “self-perception” (“Selbstverständnis”) that was formulated during the first meeting.363 It demanded the government to account for the ecological, economic, and financial situation of the country; obliged the government to consult the CRT prior to all important decisions; and intended to directly address the public with proposals for overcoming “the crisis”. The CRT, moreover, decided to draft a new constitution, investigate corruption in government and administration, and oversee the abolition of the Stasi. It planned “to continue its activity until free, democratic, and secret elections are being held”.364 Even though the “self-perception” had declared that the CRT “could not exercise any parliamentary or governmental function”,365 by January 1990 the CRT had developed into the GDR’s central control and steering organ. As such, it had in fact taken over the national government.366 This became obvious when, on January 15, 1990, Minister President Modrow, in order to be able to govern the country, had to ask the CRT to participate in what he called a “government of national responsibility”.367 This government was established on February 5, 1990, when all groups and parties participating in the CRT contributed a minister to the new government.368

360 See Neubert, 281, 282. 361 Ibid., 281. 362 Ullmann, quoted in: Neubert, 282; the original reads: „… lasst uns das zur Lehre dienen und jetzt Nägel mit Köpfen machen. Sie schreien, weil sie ein Ergebnis wollen.“ 363 See for this and the following Bund der Evangelischen Kirchen, “Beschlüsse des Rundtischgespräches am 7./8.12.1989“, Anlage 6 zu A 1011 – 4256/89, Informations- und Dokumentationsstelle der EKD in Berlin, S. 2, quoted in: Neubert, 281. 364 Ibid. 365 Neubert, 281. 366 See Thaysen, in: Fricke/Lechner/Thaysen, 73, 77; Weil, Verhandelte Demokratisierung, 220. 367 See supra, 74. 368 See Winkler II, 545.

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A characteristic of the new government was the direct communication between the people, the CRT, and the government, which is exemplified in the so-called “Treptow-Skandal”.369After Neo-Nazis had damaged a Soviet cenotaph in East Berlin’s Treptow Park, Modrow tried to use the event to re-establish a secret service in the GDR despite the CRT’s strict opposition. When Modrow was about to ignore the CRT’s insistence on abolishing all secret services in the country, “hundreds of thousands” took to the streets in cities all over the country.370 As a result, Modrow scrapped his plans for a new secret service and declared that the existing one, the AfNS, would be dissolved too.371 Against this background Uwe Thaysen concludes that “the CRT became a symbol for the people’s will and ability to win back lost freedom”.372 Public freedom, I may add. Moreover, the CRT’s particular working style marks it as an institutionalization of public freedom. Instead of reductionist majority rule, the CRT practiced a discursive, participatory, and consensual style listening to and taking into account all opinions.373 De Maiziere said, “It was a peaceful talking to each other” (“Es war ein friedliches Miteinanderreden”)374 and “[w]e had the feeling we were all sitting in one boat” (“[w]ir hatten das Gefühl, wir säßen alle in einem Boot”).375 According to Ullmann, the CRT was not an institution in which interests were being represented.376 Instead, it was an institution within which, based on information and “in a process of open discussion and public debate”,377 opinions were being formed, expressed, considered, and translated into political decisions.378

369 For this and the following, see Neubert, 316 ff. 370 Ibid., 320. 371 See ibid., 231. AfNS stood for “Amt für National Sicherheit” (Agency for National Security) and was the new name for the old MfS (Ministerium fur Staatssicherheit) or Stasi, see Thaysen, in: Fricke/Lechner/Thaysen, 68. 372 Thaysen, Der Runde Tisch, 154. 373 See Ullmann, Verfassung und Parlament, 72 f.; Süß, DA 1991, 474, 475 opposing Thaysen, who writes about “the old power struggle” in the CRT, see Thaysen, in: Fricke/Lechner/Thaysen, 66 ff. 374 De Maiziere, Anwalt der Einheit, 70. 375 Ibid., 63. 376 See Ullmann, Verfassung und Parlament, 175. 377 See Arendt, On Revolution, 268. 378 See Ullmann, Verfassung und Parlament, 175 ff.

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Against this background, it can hardly be denied that the RTs, including the CRT, enjoyed democratic legitimacy.379 To be sure, their legitimacy was not based on elections in compliance with fundamental democratic principles (general, free, equal, secret). However, the RTs enjoyed a much more profound and direct legitimacy, which the people had provided them with and which was no less democratic. The people had either directly determined their RT representatives or had clearly acclaimed their support either for citizens’ movements that established RTs or for the RTs themselves. Moreover, direct communication was ongoing between the people and the RTs.380 Thaysen writes that the CRT enjoyed so much backing by the people that it had the strength to prevail over the government and the VK.381 He, moreover, points out that what he calls “demonstrations democracy” continued throughout the time of the CRT’s existence.382 Walter Süß writes that the CRT possessed a “revolutionary-democratic legitimacy as a plebiscitary body”.383 The same is true for RTs at the local and regional levels.384 The fact that many RTs considered themselves transitional institutions whose task, among others, was to prepare democratic elections at the federal and local levels did not affect their character as institutionalizations of public freedom. An institution’s permanence is no requirement for the institution’s character as an institutionalization of public freedom. Permanence is rather a question of what is being made durable by way of writing it into a constitution. Arendt’s two elements of the revolutionary spirit (starting something new and making it durable) will help to clarify the point. The actual establishment and operation of RTs was a revolutionary act of institutionalizing a new form of government. Manifesting RTs in constitutional law would have been the second step of making the new form of government stable and durable.385 The RTs, mostly, did not aspire to such permanence but saw their role in shaping the transitional period

379 With respect to the CRT, Winkler writes that “[t]he Round Table had no democratic mandate”, see Winkler II, 558. Thaysen points out the CRT’s “insufficient legitimization”, see Thaysen, in: Fricke/Lechner/Thaysen, 77 f. 380 See Fiedler, in: HStR VIII, § 184 Rn 24 f. 381 Thaysen, Der Runde Tisch, 78. 382 Ibid., 184 f. 383 Süß, DA 1991, 601. 384 See Weil, Verhandelte Demokratisierung, 220. 385 See Arendt, On Revolution, 222, 223.

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until free democratic elections and in preparing such elections.386 Still, while they were active, the RTs acted self-consciously as institutionalizations of the peoples’ direct participation in government, i.e. as institutionalizations of public freedom. As such, the RTs acquired a profound constitutional meaning. Being run by, among others, ordinary people and political groups that were no political parties but were in fact critical of the party system, they institutionalized a non-party, participatory, direct democracy at the local, regional, and national level. The RTs did not only contribute to overcoming the SED’s party dictatorship but, as institutions, developed into a competitor of the party system as such. Ullmann, who Thaysen calls a “central personality” and a “figurehead” of the CRT,387 understood this when he said that the RT perspective relativizes the left-right perspective.388 Ullmann writes that the left-right perspective’s “relativity” is the lesson to be learned from the GDR experience where a party was in power which presented itself as being left but which had governed with all the characteristics of the extreme right as long as it could get away with it.389 This criticism not only places the SED within the tradition of the Bolshevik party’s dictatorship; it is a criticism of the party system as such.390 For Ullmann, the party system stands for competition, thinking in ideologies, and preventing reasonable decisions. The RT system, on the other hand, stands for cooperation, orientation towards an “invisible center”, common decisions, a discourse free of ideologies, and “the obligation to prove the institution’s capacity to decide” (“Beweispflicht zur Entscheidungsfähigkeit”).391 Moreover, the RT system led the citizens to direct participation in public affairs, while the party system blocked them out. Thaysen confirms this and argues that the RTs contributed to “the average citizen all of a sudden counting for something in the GDR and experiencing herself as politically active”.392 Thaysen also confirms the antagonism between the RT system and the party system by comparing the CRT’s political practice with that

386 For the CRT, see supra, 76; for the other RTs, where that was not so clear, see infra, 113 ff. 387 Thaysen, Der Runde Tisch, 49. 388 See Ullmann, Verfassung und Parlament, 72 f. 389 See ibid., 72. 390 See ibid., 72 f. and also 106 ff., 111 ff. 391 Ibid., 72 f. 392 See Thaysen, Der Runde Tisch, 174.

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of a council democracy (Rätedemokratie) and by stating its incompatibility with the political philosophy of Western democracies.393 The antagonism between the citizens’ movements in the GDR and the West German party system, which we saw earlier,394 reoccurred in the relationship between the RT system and the party system in the GDR. It is yet another example of “the conflict between the modern party system and the new revolutionary organs of self-government” that Arendt writes about.395 Hence, the springing up of RTs during the 1989 Revolution must be considered as yet another example of the importance of the council idea in the fight against party dictatorship.396 Finally, the RTs are a paradigmatic example of what Ackerman calls “unconventional adaptations”.397 The concept of unconventional adaptation is part of the principle of revolutionary reform in that the revolutionary people, in order to implement fundamental change, do not completely abolish existing institutions but instead use the existing institutional framework in unconventional, new ways.398 This is exemplified by constitutional change in America in the 1780’s, the 1860’s, and the 1930’s when, according to Ackerman, “the protagonists were not yearning for root-andbranch repudiation but for the revolutionary reform of the old regime.”399 The characteristic of revolutionary reform and unconventional adaptation, in Ackerman’s view, is that a “distinctive form of revisionary practice” is developed, one that does “not respect established norms for revision”.400 More broadly conceived, the unconventionality may extend to both the procedure and the substance of constitutional change. The RTs built upon the existing institutional framework by, for example, not simply abolishing the existing government but instead cooperating with its institutions and representatives. Still, they used this institutional framework in a completely new way in that they first controlled, then participated in, and

393 394 395 396 397 398 399 400

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See ibid., 177. See supra, 56. Arendt, On Revolution, 247. Anweiler emphasizes this meaning of the councils in the fight against the dictatorship of the Bolshevik party between 1921 (Kronstädter Matrosenaufstand) and 1956 (Hungarian Revolution), see Anweiler, 2. See Ackerman II, 9 ff. See ibid., 9, 12. Ibid., 12 (my italics). Ibid.

B. My thesis

finally, in many cases, took over existing government institutions and ran them in a fundamentally new way. After these institutional reactions, the next step in the process of revolutionary constitutional lawmaking was the manifestation of revolutionary achievements through law. c) Manifestation through law Fully within the tradition of the revolutionary spirit, the GDR revolutionaries were not only concerned with the act of founding a new government but immediately devoted their attention to providing revolutionary achievements with stability and durability through legal manifestation. The revolutionaries’ efforts at legal manifestation comprised all elements of their constitutional agenda: liberation, at least some aspects of public freedom, individual empowerment, and environmental protection. Liberation, i.e. the abolition of the SED party dictatorship and the guarantee of civil rights, was legally manifested on December 1, 1989, when the VK, upon a motion by all parties represented in the VK, deleted Art. 1 of the GDR Constitution, which had established the leading role of the working class and its Marxist-Leninist party (i.e. the SED).401 On January 12, 1990, Art. 12 I, 2 of the GDR Constitution, which had prohibited private property in power plants, banks, and industrial enterprises, was deleted and replaced with a provision that allowed the legislature to reintroduce private property in these fields.402 On February 5, 1990, after intensive discussions with the CRT, the VK adopted a resolution that guaranteed freedom of opinion, information, and the media,403 liberties that were further specified by legislation granting, for example, freedom of association and freedom of assembly. These rights were very similar to guarantees included in the FRG’s GG.404 These changes are examples of a form of unconventional adaptation whose unconventionality lies in the adaptation’s substance rather than in its procedure.405 All amendments were adopted in formal compliance with

401 402 403 404 405

See Winkler II, 528; Würtenberger, in: HStR VIII, § 187 Rn 15. See Würtenberger, in: HStR VIII, § 187 Rn 17. Ibid. Rn 26 f. Ibid. Rn 27. See supra, 80.

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the GDR’s existing legal order by observing the formal requirements of Art. 63 II (2/3 majority) and Art. 106 (explicit modification of the constitution’s text) of the GDR Constitution.406 The adaptation was still unconventional because it abolished, or profoundly changed, some of the most fundamental principles of the existing constitution in order to legally manifest the people’s revolutionary achievement of liberation from the SED’s tyranny.407 The CRT attempted to legally manifest individual empowerment, environmental protection, and at least parts of public freedom in the Social Charter (aa) and the Round Table Draft Constitution (RTD) (bb). Moreover, a VK resolution of January 24, 1990 legally manifested an important institution of public freedom by explicitly legalizing the RTs’ participation in local government.408 The Social Charter as well as the RTD had originally been conceived of as legal foundations of a new sovereign GDR. However, the revolutionary developments had overtaken the CRT in that the revolutionary people, following the opening of the Berlin Wall on November 9, 1989, had begun to change their minds with respect to an important goal of their Revolution: instead of a renewal of the sovereign GDR they now wanted German unification.409 The CRT, true to its character as an institutionalization of the popular movement, reacted to this change by altering the political character of both the Social Charter and the RTD from legal foundations of a new sovereign GDR to a basis for negotiations with the FRG over unification. 410 This change in political character, however, did not affect the texts’ character as legal manifestations of revolutionary achievements. aa) The Social Charter The CRT adopted the Social Charter on March 5, 1990.411 It was an attempt to legally manifest the revolutionary constitutional principle of 406 For the text of the GDR’s 1968/1974 Constitution, see v. Münch (Hrsg.), Dokumente der Wiedervereinigung Deutschlands, 1 ff. 407 See Würtenberger, in: HStR VIII, § 187 Rn 41 ff. 408 See ibid. Rn 29; Willoweit, 423, 424. 409 See Neubert, 324. 410 See Winkler II, 557; Bremers, in: Fischer/Künzel (Hrsg.), 139 ff.; Rogner, 40; Thaysen, Der Runde Tisch, 140. 411 See Winkler II, 557; Neubert, 337; Rogner, 39 note 89.

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individual empowerment. Instead of only alleviating the negative social effects of a market-economy, the Social Charter intended governmental economic policymaking to shape a social environment in which constitutional individual rights could become a social reality for everyone.412 For an effective implementation of this goal, the Social Charter conceived of social rights not only as state goals but also as judicially enforceable individual claims against the state.413 It thus went beyond the Social State Clause of the FRG’s GG (Art. 20 I, 28 I GG) and instead resembled the European Social Charter, which formulates social guarantees as international human rights.414 According to the Social Charter, the economic order should be based on and be obliged to the standards of equality.415 Social rights included in the Social Charter were, for example, a right to labor, equal treatment of the sexes, a right to education, a right to housing, and a right to a system of social security. The right to labor included, among others, a right to collective bargaining and a right to strike, a prohibition against locking out workers during strikes (Aussperrungsverbot), and a high level of protection against worker lay-offs. The right to housing included, for example, governmental control and limitation of rents (staatliche Aufsicht über Mietpreisbildung und Mietpreisbindung) as well as protection against eviction (Kündigungsschutz). Equal treatment of the sexes demanded, among other things, equal representation of men and women in all sectors of professional life, a comprehensive provision of day care, and a woman’s right to abortion. The VK, in its last session before the first free elections on March 18, 1990, adopted the Social Charter on March 7, 1990. The VK then sent it to the FRG’s parliament as a basis for negotiations over the planned Currency, Economic, and Social Union between the FRG and the GDR.416 Some of the Social Charter’s rights and principles later reappeared in the RTD, the UT, and even in the GG. Thaysen writes that the CRT with its

412 See Rogner, 40. 413 Ibid. 414 See ibid.; Quint, 47 Am. J. Comp. L. 303, 311 (1999); generally on the European Social Charter, see Harris/Darcy, The European Social Charter (2001). 415 For this and the following content of the Social Charter, see Rogner, 40 ff.; Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 139 ff.; and Winkler II, 557. 416 See Winkler II, 557; Ritter, 190.

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claims addressed to the FRG government had developed into a “demanding parallel government” for the FRG.417 Some authors see the Social Charter as the CRT’s attempt to preserve “achievements of the GDR” and to transfer them to unified Germany.418 This view is based on formulations in the Social Charter that speak of the preservation of social achievements of the citizens in the GDR, of social standards achieved in the East, and, for instance, of “the right to work as legally guaranteed in the [GDR]” (“das in der Deutschen Demokratischen Republik gesetzlich verbriefte Recht auf Arbeit”).419 These authors not only mischaracterize the Social Charter but profoundly misinterpret the 1989 Revolution and its constitutional meaning. The East Germans did not want to preserve “achievements of the GDR” for the simple reason that, in reality, there were no such achievements. There had been no real right to work because a one-party dictatorship had told people what, where, and how to work. There had been no real right to housing because a corrupt regime had arbitrarily assigned or withdrawn apartments. There had been no real equality of the sexes because, even with a right to abortion, women had been discriminated against in the workplace and there were hardly any women in leading positions.420 The people were well aware of these discrepancies between law and reality because they had experienced them on a daily basis. When Neubert writes that “the real social situation in the GDR, the old-age poverty [Altersarmut], the deficits in nursing old people [Pflegenotstand], the decline of the public health sector, the lack of housing [Wohnungsnot], were obviously not taken into consideration”,421 the contrary is true. In fact, it was exactly these problems, the very gap between the law on the one hand and social reality on the other, that had driven the people into the streets. That is the experience which is reflected in the Social Charter and in the principle of individual empowerment. The people wanted a new, a unified Germany, but they wanted it to be different in that the law should actually mean what it says and be implemented in social reality. When the CRT in the Social Charter referred to social achievements, it referred to social

417 418 419 420 421

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Thaysen, Der Runde Tisch, 141. See, for example, Neubert, 337; Schlink, in: Guggenberger/Stein (Hrsg.), 21. See Bremers, in Fischer/Künzel (Hrsg.), Bd. I, 140. See infra, 195. Neubert, 337.

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achievements of the 1989 Revolution, not to achievements of the very state the people were about to abolish. bb) The Round Table Draft Constitution (RTD) Another attempt to legally manifest the popular movement’s constitutional agenda of the Revolution’s first phase was the RTD.422 The RTD was prepared by the working group “New Constitution of the GDR”, a working group the CRT had established for the purpose of drafting a new constitution for a new sovereign GDR.423 The importance the CRT attributed to the project is reflected in the fact that it was initiated at the CRT’s very first meeting on December 7, 1989.424 Erich Fischer, speaker of the East SPD for constitutional questions at the CRT, calls it ”the CRT’s first and most meaningful decision”.425 The RTD’s purpose was to provide the Revolution’s achievements with stability and durability. This makes the RTD another example of the revolutionary phenomenon that, while still in the process of beginning something new, revolutionaries are already concerned with its preservation. The RTD reunited the “spirit of the new” and the “concern with stability” in a manifestation of the typical revolutionary principle of “thinking together and combining meaningfully what our present vocabulary presents to us in terms of opposition and contradiction”.426 The fact that the CRT decided to staff its working group so that it equally represented all participating political forces427 already shows that the CRT applied its cooperative, discursive, and integrative working style to the drafting of a new constitution. Most importantly, however, it is the RTD’s content that reveals it as a legal manifestation of the popular movement’s constitutional agenda consisting of liberation, public freedom, individual empowerment, and envi-

422 A copy of the RTD of Apr. 4, 1990 is reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 20 ff. 423 See the RTD’s first page, in: Fischer/Künzel (Hrsg.), Bd. II, 20. 424 See Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 11. 425 Ibid. 426 Arendt, On Revolution, 223. 427 See No. 2. of the RT’s Declaration of Dec. 7, 1989 for the appointment of the working group, reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 11.

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ronmental protection. A summary of some of its core provisions will make the point. Liberation. The people’s call for liberation is manifested in the RTD’s catalogue of individual rights. It is almost identical to the GG’s list of basic rights.428 The provisions include, among others, the protection of human dignity (Art. 1 (1) RTD),429 equal rights for men and women (Art. 3 (1)), the freedom to travel (Art. 6 (1)), and the inviolability of the home (Art. 9 (1)). Public freedom. The RTD’s most striking provisions in terms of constitutionalizing public freedom are Art. 21 (1), Art. 35, and Art. 65 (1). Art. 21 (1) states that “[e]very citizen has the right to political participation” (“Jeder Bürger hat das Recht auf politische Mitgestaltung”). Art. 35 (1) defines citizens’ movements as “[a]ssociations that devote themselves to public tasks and, in so doing, influence the formation of public opinion” (“Vereinigungen, die sich öffentlichen Aufgaben widmen und dabei auf die öffentliche Meinungsbildung einwirken”). It recognizes citizens’ movements as “pillars of free social design, critique, and control” (“Träger freier gesellschaftlicher Gestaltung, Kritik und Kontrolle”) and places them under “specific constitutional protection” (“besonderer Schutz der Verfassung”). Art. 35 (2) grants citizens’ movements the right to present their concerns to the federal and state parliaments and obliges these parliaments to deal with presented concerns. Citizens’ movements, moreover, have the right of access to information that is related to their concerns and held by the public administration. Art. 65 (1) establishes a “citizens’ commissioner” (“Bürgeranwalt”), and Art. 65 (2) and (3) oblige the government and the public administration to grant the citizens’ commissioner access to all necessary information, to public institutions, and to administrative assistance. The commissioner presents a public annual report to the parliament. These provisions take up the revolutionary experience of public freedom in that they legally manifest people’s direct participation in politics and public discourse through citizens’ movements and the citizens’ commissioner. However, the RTD fails to constitutionalize RTs as institutions of citizens’ direct participation in government, even though it obliges the government to cooperate with citizens’ movements and citizens’ commis-

428 See Art. 1 ff. of the RTD. 429 The following provisions are those of the RTD unless otherwise indicated.

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sioners. In that respect, the RTD manifests only parts of the revolutionary experience of public freedom. Still, western constitutional law scholars have criticized Art. 35 (2) as inappropriate for a constitutional democracy and as hardly practicable.430 They brush off the fact that people’s direct participation in government through RTs had been successfully practiced during the 1989 Revolution with the argument that RTs were useful in “extraordinary emergencies of a national crisis” or to “win German unity”.431 I can’t help the impression that these authors try to turn RTs into an emergency measure in order to then dispose of them on the shelf of history. Peter Häberle, for example, calls the RTs “great symbols”, which should not be “worn off” or “devalued” in “everyday political life”.432 It is worth noting that, during the 1989 Revolution, RTs were very practical institutions providing ordinary people with real opportunities to participate in everyday political life without thereby being worn off or devalued. Whatever one thinks of these arguments, it cannot be denied that the RTD tried to constitutionalize at least parts of the revolutionary experience of public freedom. Hence, the RTD is, as far as I can see, the first attempt to save this experience from oblivion. As such, it is completely new and an outstanding constitutional achievement of the 1989 Revolution. From the perspective of constitutional doctrine, it is important to emphasize the difference between the 1989 Revolution’s citizens’ movements, which Art. 35 RTD tried to constitutionalize, on the one hand and what West German constitutional scholarship has been discussing as the constitutional meaning and role of “associations” (“Verbände”) or the “status corporativus” on the other.433 The 1989 Revolution’s citizens’ movements provided citizens with an opportunity to form and express political opinions and participate in public politics. Associations, on the other hand, pursue interests by trying to influence elected politicians. The decisive difference is that as participants in citizens’ movements citizens

430 431 432 433

See Häberle, JöR 1990, 339 with further references. Ibid., 322. See ibid. See ibid., 338, 339, who seems to deny a difference. For the discussion on “associations” and the “status corporativus”, see Grimm, Verbände, in: Benda/ Maihofer/Vogel, Bd. 2, 657 ff; Steinberg (Hrsg.), Staat und Verbände (1985); and Böckenförde, Staat, Verfassung, Demokratie, 406 ff.

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act out of concern for the public good; as members of associations they act out of concern for their private lives.434 As regards the relationship between elected politicians and interest groups on the one hand and citizens on the other, there are two other important elements of the RTD that are worth mentioning. One is embedded in Art. 36 – 39 RTD and provides for heightened surveillance of lobbyists and their political power. The other is embedded in Art. 37 (3) RTD and grants citizens a so-called “Bürgerbonus”, i.e. a financial vote in addition to the political vote. The “Bürgerbonus” gives each voter a specified amount of public money that she can donate to parties or citizens’ movements that participate in elections.435 Both elements reflect an important attempt to strengthen citizens’ influence on elected representatives in a political world that is increasingly dominated by private economic power. However, neither provides citizens with direct participation in government. Against this background it is interesting that Peter Häberle welcomes the introduction of plebiscitary elements, such as petitions (Volksbegehren) (Art. 99) and referenda (Volksentscheide) (Art. 90, 99), as a “further development of direct democracy” and a conclusive reaction to the people’s revolutionary statement “We are the people”.436 Häberle considers these plebiscitary elements appropriate responses to the fact that, through the successful Revolution, the people have proven to be sufficiently mature for this kind of direct democracy.437 Even more interesting is what Arendt, in light of the French Revolution, thinks of plebiscites. Arendt writes, the plebiscite is “the only institution which corresponds closely to the unbridled rule of public opinion; and, just as public opinion is the death of opinions, the plebiscite puts an end to the citizen’s right to vote, to choose and to control their government.”438 She is even more direct in The Origins of Totalitarianism: “Plebiscites … are an old concept of politicians who rely upon the mob.”439 On this basis, I think that 434 See Arendt, On Revolution, 268, 269; see also Preuß, in: Guggenberger/Stein (Hrsg.), 360 f. 435 See also Preuß, in: Guggenberger/Stein (Hrsg.), 361; for a similar proposal in the U.S., see Ackerman/Ayres, Voting with Dollars (2002). 436 See Häberle, JöR 1990, 345. 437 Ibid., 346 (my italics). 438 Arendt, On Revolution, 228. 439 Arendt, The Origins of Totalitarianism, 107; for a very critical attitude towards plebiscites, see also Heckel, in: HStR VIII, § 197 Rn 77 with further references.

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Häberle’s statement reflects a profound misinterpretation of the 1989 Revolution’s core lesson. Public freedom is the people’s direct participation in government. The institutions to realize public freedom are citizens’ movements and RTs, not plebiscites. Plebiscites rather correspond to Schmitt’s version of democracy as the rule of public opinion based on the people’s acclamation of Yes or No to questions formulated by a political elite. According to Arendt, plebiscites are the party system’s utilization of the mob. Individual empowerment. The RTD, moreover, manifested the people’s demands for individual empowerment in so-called social rights, such as the right to appropriate housing (Art. 25 (1)), the right to labor (Art. 27 (1)), free access to public education (Art. 24 (1)), and the right to social security aiming at enabling the individual to live a life of equal opportunity and independence (Art. 23 (2) and (5)). The people’s call for realsocial equality for women was manifested in provisions, such as Art. 3 (2) establishing a government obligation to promote equal treatment of women on the job and in public life, in education, the family, and in the field of social security; or Art. 4 (3), which gave women the right to a “self-determined pregnancy” (“selbstbestimmte Schwangerschaft”) and obliged the state to protect the unborn life by offering social support (Angebot sozialer Hilfen). The latter provision was the CRT’s attempt to constitutionalize the so-called time-phase model (Fristenlösung) as opposed to the indication model (Indikationenlösung), which was in force in the FRG at the time.440 Environmental protection. Finally, Art. 33 RTD legally manifested the people’s demand for environmental protection. It described the natural environment as a “foundation of life for present and future generations” and made its protection an obligation of the state and all citizens. The government’s environmental policy must prevent damage to the environment and make sure that natural resources are used moderately. Art. 33 RTD

440 See Häberle, JöR 1990, 332; for the differences between the time-phase model and the indication model, see infra, 202. Moreover, Art. 65 (1) RTD provided for the appointment of a “Commissioner for questions concerning the equal treatment of men and women” (“Beauftragter für Fragen der Gleichstellung von Mann und Frau”) to help making gender equality a social reality. Government and administration were obliged to cooperate with the Commissioner, and the Commissioner had to submit and annual report to the VK, see Art. 65 (2) and (3) RTD.

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granted everybody who claims her health to be endangered by environmental destruction a right of access to environmental data of her living environment. Markus Bremers rightly concludes that the RTD transcended the civilliberal concept of a separation between state and citizens and emphasized the citizens as the pillars of the state. The RTD stands for a development from a “state constitution” to a “citizens’ constitution”441 and, thus, appears as a legal manifestation of the 1989 Revolution’s spirit and the popular movements’ constitutional agenda during the Revolution’s first phase.442 Many authors deny the RTD this quality.443 Their main arguments are: (i) the CRT as the RTD’s potential author was not democratically legitimated and only represented parts of the people;444 (ii) the RTD cannot be considered the CRT’s work product because the CRT did not adopt it by a plenary vote and it lacked any basis for consensus;445 and (iii) the people, as of March 18, 1990 represented by a newly elected VK, rejected the RTD by not only refusing to adopt it but also by not even passing it on to the VK committees for further consideration.446 First, I have already said why I think the CRT cannot be denied democratic legitimacy.447 Such a denial reflects an understanding of democracy that is determined by and confined to the concept of representative democracy and the party system. It ignores popular sovereignty as a real, unorganized, and unregulated event and reduces it to the act of voting. It also ignores the existence of other, more direct and participatory forms of democracy. Even if one would agree with such an understanding during times of normal politics, it does not describe reality during times of revolution. Although the CRT was not legitimated by democratic elections, it

441 Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 143; equally Preuß, in: Guggenberger/ Stein (Hrsg.), 357 ff., 360. 442 Preuß considers the RTD to be “possibly the most authentic testimony of the 1989 Revolution’s unique character”, see Preuß, in: Guggenberger/Stein (Hrsg.), 366. 443 See Fiedler, in: HStR VIII, § 184 Rn 35 ff.; Würtenberger, in: HStR VIII, § 187 Rn 56; Rogner, 178 ff. 444 See Fiedler, in: HStR VIII, § 184 Rn 35; Winkler II, 558. 445 See Würtenberger, in: HStR VIII, § 187 Rn 56; Fiedler, in: HStR VIII, § 184 Rn 34; Thaysen, Der Runde Tisch, 144, 145. 446 See Würtenberger, in: HStR VIII, § 187 Rn 56. 447 See supra, 78.

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did receive democratic legitimacy through the fact that it directly developed out of the popular movement and remained in constant communication with it.448 Second, the RTD, at least with respect to its core elements, must be considered the CRT’s work product, even though the CRT plenum did not formally adopt it.449 This conclusion is supported by the fact that the RTD included the concept of individual empowerment, the core concept of the Social Charter, which the CRT had formally adopted on March 5, 1990.450 Another argument is that, after hearing the CRT working group’s presentation of the RTD’s completed and uncompleted parts451 at its last plenary session on March 12, 1990, the CRT plenum instructed the working group to put all parts together into one proposal and submit it to the public for debate.452 The CRT plenum, moreover, decided that the RTD should be included in the debate over a new constitution for unified German.453 At the same time, the CRT plenum explicitly decided against taking over the FRG’s GG as a new GDR constitution.454 Against this background, it seems fair to say that the CTR considered the RTD its work product.455 Third, on April 26, 1990, the first freely elected VK, indeed, refused to adopt the RTD as a new constitution of the GDR for the transitional period until German unification. It even refused to pass it on for further discussion in the responsible VK committees.456 That, however, does not undermine the RTD’s meaning as a legal manifestation of the popular movement’s constitutional agenda. In the light of the fact that on March 18, 1990 the people had clearly voted against the founding of a new sovereign

448 See supra, 75 f., 77, 78; see also Fiedler, in: HStR VIII, § 184 Rn 24 f., 33, who writes that the CRT became the voice of the demonstrating people. 449 See Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 15 ff., who explicitly opposes Thaysen’s view; see also Fischer, DA 1991, 961, 962. 450 See supra, 82 ff.; equally Bremers, in: Fischer/Künzel (Hrsg.), Bd I, 139. 451 Fischer, member of the working group, writes that about 90% of the RTD were done and were presented to the CRT on Mar. 12, 1990. Only parts of the financial constitution and the transitional provisions had not been finished by that time, see Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 15. 452 Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 16; Rogner, 126. 453 Ibid. 454 See Kukutz, 157. 455 This conclusion is shared by Ullmann, Verfassung und Parlament, 124, 179; Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 16; Süß, DA 1991, 476 f. note 43; and even Rogner, 38, 131, who calls the RTD the CRT’s “legacy” (“Vermächtnis”). 456 See Fischer, DA 1991, 961; Häberle, JöR 1990, 326, 327.

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GDR and for unification with the FRG, the adoption of a constitution that would have founded a new sovereign GDR would have contradicted the people’s vote.457 Moreover, as I will show later, the newly elected VK did consider it its popular mandate to take up important elements of the RTD and transfer them to unified Germany.458 In summary, the 1989 Revolution, during its first phase, was a real revolution with a constitutional agenda consisting of liberation from tyranny, public freedom, individual empowerment, and environmental protection. This agenda is reflected in institutional reactions, such as the opening of the Berlin Wall, the abolition of the SED regime, and the establishment of RTs at the local, regional, and national level. It found legal manifestation in fundamental amendments of the GDR Constitution, the Social Charter, and the RTD. I will now show how the 1989 Revolution’s constitutional agenda changed during the Revolution’s second phase. 2. Second phase of the 1989 Revolution Opinions differ as to when exactly the Revolution entered into its second phase. Some say it was with the fall of the Berlin Wall on November 9, 1989.459 Others think it started in January 1990, when the demonstrations became dominated by the black-red-golden flags and the chant “We are one people” (“Wir sind ein Volk”) instead of “We are the people” (“Wir sind das Volk”).460 The truth probably lies somewhere in the middle.461 More important than the timing is the substantive change that characterizes the Revolution’s second phase. In that respect one thing is undisputed: whereas the revolutionary people during the Revolution’s first phase wanted to renew a sovereign GDR, the Revolution’s second phase was charaterized by the people’s will to unite with the FRG and to do so fast. Confronted with the options of establishing a new sovereign GDR, which 457 This attitude is reflected in most statements by the VK members cited by Häberle, JöR 1990, 325 f. 458 See infra, 107 ff. 459 See, for example, Winkler II, 520; Garton Ash, 69 ff.; Schlink, in: Guggenberger/ Stein (Hrsg.), 19. 460 See Neubert, 324; Winkler II, 520, 521 (my italics). 461 For a differentiated analysis of the process, see Reißig, in: Joas/Kohli (Hrsg.), 60 f.

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would then enter into negotiations with the FRG over a future cooperation or unification, on the one hand and fast unification with the FRG on the other, the people decided for the latter in a clear vote in the first free VK elections on March 18, 1990.462 So far, so good. The interesting constitutional question remaining is how this change affected the rest of the people’s constitutional agenda. Most authors assert that, as of phase two, the people wanted an unconditional adoption of the GG.463 Winkler, for example, interprets the results of the March 18, 1990 elections as a majority vote for German unity and the adoption of the West German economic, social, and constitutional system.464 The overwhelming majority, Winkler writes, completely rejected the citizens’ movement’s idea of a “third way” as unrealistic.465 Reißig argues that who prevailed in the Revolution’s second phase were the promoters of an “unconditional adoption of the West German model”.466 One reason for that, according to Reißig, was that “the initiative passed from the activists of the democratic Revolution to the West German parties and media and in particular to the FRG government.”467 According to Habermas and Reißig, the FRG government dominated all basic decisions of the GDR development,468 and it was economic pressure that made the East Germans vote for the FRG’s economic and social model.469 A speaker for the (East) CDU, during a VK debate on April 19, 1990, said that it had been the GG that had driven the people into the streets and that the people had voted for in the elections on March 18, 1990.470 One author even argues that by chanting “We are one people” the people implicitly said “We are one law” and thereby demanded an unconditional adoption of the GG.471

462 See only Winkler II, 559. 463 See, in addition to the authors cited in the following, Schlink, in: Guggenberger/ Stein (Hrsg.), 19; Hancock/Welsh, in: Hancock/Welsh (eds.), 8; Heitmann, in: FS f. Helmrich, 220. 464 See Winkler II, 559, 560. 465 See ibid., 560. 466 See Reißig, in: Joas/Kohli (Hrsg.), 60. 467 Ibid. 468 See Habermas, Die andere Zerstörung der Vernunft, in: Die Zeit, 10. Mai 1991, p. 63; Reißig, in: Joas/Kohli (Hrsg.), 61. 469 See Reißig, in: Joas/Kohli (Hrsg.), 62. 470 See Häberle, JöR 1990, 325; for a similar view, see Scholz, in: FS f. Lerche, 66; Heitmann, in: FS f. Helmrich, 220. 471 See Rogner, 36, 49.

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The most powerful argument for the unconditional-adoption theory is the result of the first free VK elections on March 18, 1990. By voting for parties that stood for a fast accession to the FRG, the argument goes, the people provided the new VK and the new government with a popular mandate to pursue fast accession to the FRG based on Art. 23, 2 GG. Art. 23, 2 GG, the argument continues, stood for an unconditional adoption of the GG.472 Art. 23, 2 GG, at the time, stated that “[i]n other parts of Germany it [the GG] must enter into force upon their accession”.473 Few authors dispute this point of view. One of them is Hans-Jochen Vogel, who writes that the East Germans’ decision to accede to the FRG based on Art. 23 GG was misinterpreted as a vote for an unconditional adoption of the GG.474 The most outspoken critic of the dominant opinion is Hans Joachim Meyer, who writes, I admire the courage of those who … know exactly what the people wanted on March 18, 1990. Apparently, they wanted our constitution from Art. 1 to Art. 146 [GG], they wanted a constitution that contains nothing about environmental protection, they wanted a constitution that is interpreted like our constitution, so that we transfer fundamental rights to the EC without enforcing the EC’s parliamentarization, etc., etc. Do you really believe you can say that this is what they wanted? I think that is an admirable fiction.475

Meyer goes even further and explicitly denounces the dominant opinion as a doctrinal cover-up for a western power elite’s hidden agenda: “This is

472 See, for example, Würtenberger, in: HStR VIII, § 187 Rn 33; Lerche, in: HStR VIII, § 194 Rn 18; Heckel, in: HStR VIII, § 197 Rn 27, 28, 32, 37; Scholz, ZfA 1991, 683 ff.; Isensee, Braucht Deutschland eine neue Verfassung? (1992); Thaysen, Der Runde Tisch, 199; Vogel, NJ 1994, 145, 146 with further references in his note 5; Heitmann, in: FS f. Helmrich, 220. 473 The original Art. 23, 2 GG, in the version in force prior to unification, reads: “In anderen Teilen Deutschlands ist es [das GG] nach deren Beitritt in Kraft zu setzen.” Art. 23 GG was amended upon unification. 474 Vogel, NJ 1994, 146. 475 Meyer, in: VVDStRL 49 (1990), 162, 163; the original reads: “Ich bewundere den Mut derer, die, wie Herr Isensee, genau wissen, was die Leute in der DDR am 18. März gewollt haben. Sie haben offensichtlich unsere Verfassung von Art. 1 bis 146 gewollt, Sie haben eine Verfassung, in der nichts über Umweltschutz steht, gewollt. Sie haben eine Verfassung gewollt, die so ausglegt wird, wie bei uns, dass wir fundamntale Rechte auf die EG übertragen, ohne die Parlamentarisierung der EG zu erzwingen, etc., etc. Glauben Sie ernsthaft, Sie können behaupten, das hätten die gewollt? Das halte ich für eine bewunderungswürdige Fiktion.“

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driven by the will to preserve the status quo of social power distribution according to the Grundgesetz. You want to preserve the status quo by granting a veto to a minority that is able to prevent constitutional amendments.”476 The following analysis will show that the dominant opinion’s conclusion according to which the people decided for an unconditional adoption of the GG cannot be matched with the historical facts. An analysis of these facts will show that, even though the people did want fast unification, an adoption of the GG, and participation in West German economic wealth, they did not want and did not vote for an unconditional adoption of the GG. Instead, they wanted to preserve and transfer at least some important elements of their revolutionary constitutional agenda to unified Germany. I will develop my argument along the lines of the same three-element structure of revolutionary constitutional lawmaking that I have applied to the Revolution’s first phase. It was again by way of popular movement (a), institutional reactions (b), and legal manifestation (c) that the revolutionary people articulated their constitutional will. This will was respected not only by the GDR institutions but, as we shall see later, by the FRG institutions as well.477 a) Popular movement The VK elections on March 18, 1990 were the central event expressing the people’s will during the Revolution’s second phase. These elections, being the first free elections in the GDR and the event that marked the end of the Revolution, are generally acknowledged as having constitutional meaning.478 Martin Heckel writes, the elections had the character of elections for a “constituent national assembly” (“konstituierende Nationalversammlung”).479 They were certainly an act of the pouvoir constituant, a conclu-

476 Meyer, in: VVDStRL 49 (1990), 164; the original reads: “Dahinter steht der Wille, den status quo unserer sozialen Machtverteilung nach dem Grundgesetz festzuschreiben. Sie wollen den status quo festschreiben, indem sie der Verfassungsänderungsverhinderungsminderheit eine Vetopostion einräumen.“ 477 See infra, 115 f., 132 ff. 478 See Heckel, in: HStR VIII, § 197 Rn 26, 27; Winkler II, 560. 479 Heckel, in: HStR VIII, § 197 Rn 26.

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sion that is supported by the fact that 93.4% of the East Germans participated in the elections.480 As such, the elections are yet another example of an unconventional adaptation. Instead of officially holding elections for a national assembly to draft a new constitution, the revolutionaries, again, built on the existing institutional framework by holding elections for the VK. The VK, nonetheless, acquired the quality of a constituent national assembly through the fact that it was the first freely elected parliament in the GDR’s history as well as the successful Revolution’s institutionalization, which could refer to the endorsement by 93.4% of the East Germans. Moreover, the voters in the GDR were well informed about the competing parties and their programs. The elections’ outcome was thus less the result of traditional or socially determined party affiliation than of socalled “issue voting”, i.e. it was determined by the specific political issues at stake.481 The interpretation of the election results is hence the key to determining the people’s constitutional will during the Revolution’s second phase. My thesis is that it is wrong to interpret the results of the March 18, 1990 elections as a popular vote for an unconditional adoption of the GG. Instead they must be interpreted as a popular vote for fast unification, the adoption of the GG, but also for preserving and transferring at least some of the revolutionary constitutional achievements to unified Germany. The dominant opinion’s fundamental mistake is to assume that the parties who won the elections stood for an unconditional adoption of the GG. This flaw is most poignantly expressed in Habermas’ interpretation that the people’s vote for the Alliance for Germany (Allianz für Deutschland) was a vote for Helmut Kohl.482 In a comment on the election results, Habermas writes, “The people in the GDR for 40 years had to vote for the people in power. Kohl has convinced them that it is better to vote once more for the government in power.”483 The people’s vote for the East CDU and Lothar de Maiziere cannot be interpreted as a vote for the West CDU and Helmut Kohl because the parties as well as the persons were fundamentally differ-

480 481 482 483

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See Winkler II, 559; Kowalczuk, 529; Neubert, 367 (93.22%). See Roth, 371, 382 ff.; Schmitt, in: Gabriel/Troitzsch (Hrsg.), 404, 433 ff. For similar interpretations, see Kowalczuk, 530, 531. Habermas, in: Die Zeit v. 30.03.1990, quoted in: Winkler II, 562.

B. My thesis

ent, and the people were well aware of that.484 Ignoring these differences leads to a wrong picture of the popular mandate that the people gave the new VK in March 1990. The Alliance for Germany, consisting of the East CDU, the DSU (Deutsche Soziale Union), and the DA (Demokratischer Aufbruch), campaigned on the basis of fast unification based on Art. 23, 2 GG and a fast introduction of the Deutsch Mark in the GDR.485 So did the liberal Bund Freier Demokraten.486 The SPD was split. One part, represented by Willy Brandt, favored fast unification; the other part, led by Oskar Lafontaine, the SPD’s chancellor candidate in the upcoming federal elections in the FRG, wanted to slow down the process of unification.487 The SED, which had been renamed PDS, argued for a slow step-by-step approach to unification and wanted to preserve “values and achievements of the GDR society”.488 Three of the citizens’ movement groups, the New Forum, Democracy Now, and the Initiative Peace and Human Rights, had established the Bündnis 90 but had not been able to agree on a sustainable common program.489 The Green Party had entered into an election alliance with the Independent Women Association (Unabhängiger Frauenverband), which fell apart shortly after the elections.490 The parties’ programs mainly differed with respect to the speed of German unification.491 The elections brought a clear result. The Alliance for Germany won 48% of the vote (CDU 40.8%, DSU 6.3%, and DA 0.9%); the SPD 21.9%; the PDS 16.4%; the Bund Freier Demokraten 5.3%; Bündnis 90 2.9%; and the Green Party 2%.492 It was a clear victory for the Alliance

484 A poll taken by the Forschungsgruppe Wahlen in May 1990 shows that the voters in the GDR did not consider the East CDU to equal the West CDU, see Jung, 15. Neubert writes that de Maiziere “never became Kohl’s puppet”, see Neubert, 373. It is, moreover, undisputed that the East Germans, prior to the Mar. 18, 1990 elections, were highly interested in politics, see Roth, 388 f., and well informed about the parties’ agendas and their differences, see Roth, 369, 390. 485 See for this and the following, in addition to the cited sources, Schmitt, in: Gabriel/Troiztsch (Hrsg.), 425 f. 486 Consisting of LDPD, East FDP, and Deutsche Forumspartei, see Winkler II, 558. 487 See Winkler II, 558; Schmitt, in: Gabriel/Troiztsch (Hrsg.), 426. 488 See Winkler II, 558, 559; Schmitt, in: Gabriel/Troiztsch (Hrsg.), 426. 489 See Winkler II, 559; Schmitt, in: Gabriel/Troiztsch (Hrsg.), 426. 490 See Winkler II, 559. 491 See Jung, 11; Roth, 382; Schmitt, in: Gabriel/Troiztsch (Hrsg.), 425; for an overview of the parties and their programs, see Gibowski, 5 f. 492 See Winkler II, 559.

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for Germany, which was rightly interpreted as a popular mandate for the Alliance’s political agenda.493 The decisive question for interpreting the popular mandate thus is: what was the Alliance’s political agenda? And it is here that the dominant opinion’s analysis becomes blurry. Undeniably, the Alliance stood for fast unification by the GDR’s accession to the FRG based on Art. 23, 2 GG. Hence, it stood for an adoption of the GG. From this, however, the dominant opinion concludes, without further analysis, that voting for the Alliance equals voting for an unconditional adoption of the GG, amended only insofar as that was technically necessary for German unification.494 However, a closer look at the Alliance’s agenda and particularly at the statements by the Alliance’s political leader Lothar de Maiziere reveals that the Alliance did not stand for an unconditional adoption of the GG. Instead, it stood for an adoption of the GG under preservation and transfer to unified Germany of at least some of the constitutional achievements of the 1989 Revolution. Prior to the SED regime’s break-down, the Alliance’s East CDU had been one of the so-called bloc parties cooperating with the SED in what was known as the “national front”. The Alliance’s DSU was a Christianconservative party, who was supported by the West German CSU and who demanded “freedom instead of socialism”. The Alliance’s DA was a partly Christian-ecological, partly Christian-conservative party, which in August 1990 merged with the CDU. The East CDU, which had won 40.8% of the vote (as opposed to 6.3% for the DSU and 0.9% for the DA), clearly dominated the Alliance and determined its political agenda and profile. An important and mostly overlooked fact is that the East CDU was fundamentally different from the West CDU. The East CDU was strongly rooted in the GDR and felt strongly obligated to preserve the East Germans’ identity and dignity during the process of unification. The East CDU’s political profile and its development is strongly reflected in Lothar de Maiziere’s political development after taking over the party’s leadership on November 10, 1989.495 De Maiziere was a lawyer, member of the Synod of the Federation of the Protestant Churches in the GDR, and had

493 See ibid., 559, 560. 494 See, for example, Würtenberger, in: HStR VIII, § 187 Rn 33; Reißig, in: Joas/ Kohli (Hrsg.), 60; Thaysen, Der Runde Tisch, 199; Heckel, in: HStR VIII, § 197 Rn 27, 28, 32, 37. 495 See Winkler II, 532.

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not held any political offices in the CDU (or other political parties) previously.496 It seems that the West CDU had no influence on him being asked to lead the East CDU into the parliamentary elections.497 His political development can be described as a step-by-step process of distancing himself from socialism and the preservation of a sovereign GDR and of embracing German unification under preservation of the revolutionary East Germans’ identity and achievements.498 The concepts of individual empowerment and environmental protection combined with a critical attitude towards the FRG system were core elements of de Maiziere’s political agenda. In his early public statements as chair of the East CDU, de Maiziere presented himself as a socialist in favor of reform.499 On November 17, 1989, he was one of the CRT members who joined the Modrow government, where he became Minister for Church Issues and Vice Minister President. In the East CDU’s “guidelines” of November 18, 1989, he argued for “socialism as a result of Christian responsibility”.500 In an interview on November 19, 1989, he declared that “socialism is one of the most benevolent visions of human thinking” and that he does not share the view that “demanding democracy means demanding the abolition of socialism”.501 When de Maiziere met with the West CDU’s Secretary General (Generalsekretär), Volker Rühe, for the first time on November 24, 1989, he clearly articulated his reservations towards capitalism and the market.502 De Maiziere’s language started to change in December 1989 when he declared at the East CDU’s party convention in Berlin that the term “socialism” must no longer be used.503 In a declaration adopted at the same convention, the East CDU committed itself to a “market economy with a social obligation and ecological responsibility” as well as to unification with the FRG.504 Still, deep rifts remained between the East CDU and the West CDU. The West CDU was highly concerned about the fact 496 497 498 499 500 501 502 503 504

See ibid.; Jäger/Walter, 16. See de Maiziere, Anwalt der Einheit, 60, 61; Jäger/Walter, 17 ff. For this and the following, see Winkler II, 533; Jäger/Walter, 21 ff. See Jäger/Walter, 22. Ibid., 29. De Maiziere, quoted in: Teltschik, in: Der Spiegel v. 23. Sept. 1991, 114. See Winkler II, 533. See ibid. Quoted ibid.

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that its eastern counterpart was not newly founded but had participated in the SED regime.505 Moreover, the East CDU remained clearly distanced from the West CDU’s free-market politics.506 This is why the West CDU initially refrained from extending an offer to the East CDU to cooperate in the March 1990 elections. Kohl waited until late January 1990 before meeting with de Maiziere for the first time.507 At this point, the elections were less than two months away and the polls predicted a landslide victory for the SPD.508 Even then, however, de Maiziere refused to take over the FRG system (“We did not just want to put on the jacket of the West”)509 and he was not happy with the West CDU’s attempt to impose its rules on the East (“I did not like that Mr. Rühe immediately wanted to tell us how to do things”).510 With respect to Erwin Huber, at the time Secretary General of the CSU, the West CDU’s sister party and member of the West German government, de Maiziere said that he considered Huber as “strongly right-wing” (“sehr rechts”).511 De Maiziere’s independence from the West CDU is further reflected in his reaction to western demands to leave the Modrow government; he rejected “advice from outside that does not fully comprehend the GDR’s reality”.512 De Maiziere’s perception of his party’s obligation towards the revolutionary people had already been obvious in the early days of the SED regime’s political demise. During the bloc parties’ last meeting, it had been de Maiziere, who had, much to the surprise of the other participants, announced the end of the “Democratic Bloc”.513 He had said that “[t]oday it is our task to give the full right of participation to our

505 Jäger/Walter, 24 f. 506 Ibid., 29. 507 De Maiziere, Anwalt der Einheit, 73, 74; for earlier contacts between the East CDU and the West CDU at lower levels, see Jäger/Walter, 25 ff. 508 Opinion polls taken in early February 1990 showed 54% for the SPD, followed by the PDS with 12% and the CDU with 11%, see Görtemaker, Der Weg zur deutschen Einheit, in: Web-Publication by Bundeszentrale für politische Bildung, Deutsche Teilung – Deutsche Einheit. De Maiziere basically confirms that, saying the polls predicted 53% for the SPD, see de Maiziere, Anwalt der Einheit, 75. 509 De Maiziere, Anwalt der Einheit, 67. 510 Ibid., 68. 511 Ibid., 67. 512 De Maiziere, quoted in: Thaysen, Der Runde Tisch, 86; confirmed in principle by de Maiziere, see de Maiziere, Anwalt der Einheit, 73. 513 Thaysen, Der Runde Tisch, 121 f. Thaysen calls de Maiziere’s announcement a “sensation”, see ibid., 121; see also Jäger/Walter,35.

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people, who have forced the turnaround, who have longed for that for decades, and who have now spoken.”514 Lothar de Maiziere’s critical attitude towards an unconditional adoption of the GG and the FRG’s social and economic system also becomes manifest in a book that he co-authored with Thomas de Maiziere and Lutz Wicke in late 1989/early 1990.515 The book was published shortly after de Maiziere had been elected Minister President of the GDR.516 Thomas de Maiziere was spokesman of the CDU Berlin, Lutz Wicke member of the executive board of the CDU Berlin at the time. De Maiziere’s core position on the 1989 Revolution’s meaning for unified Germany is reflected in the book’s preface: … in today’s Federal Republic of Germany the peaceful Revolution in the other part of Germany should be considered a mandate to correct, during the process of growing together into a unity, own mistakes and to reconstruct the social market economy into an eco-social market economy.517

The authors’ political goal is to overcome socialism but at the same time to recognize and eliminate the faults of the FRG’s so-called social market economy.518 The same attitude is reflected in de Maiziere’s statement that he does not see the breakdown of the GDR and of “real socialism” as a victory of western liberalism and the market economy.519 As factors needing improvement in the FRG’s social market economy the authors enumerate “in particular”: participation of workers in the productive capital of enterprises, protection against the infringement of competition through monopolies and cartels, workers’ participation in impor-

514 De Maiziere, quoted in: Thaysen, Der Runde Tisch, 122; the original reads: “Heute ist es unsere Aufgabe, den Kräften unseres Volkes, die die Wende erzwungen haben, die sich Jahrzehnte danach gesehnt haben und die nun zu Wort gekommen sind, das volle Recht der Mitgestaltung zu geben”; see also de Maiziere, Anwalt der Einheit, 66. 515 De Maiziere, Lothar/de Maiziere, Thomas/Wicke, Lutz, Öko-Soziale Marktwirtschaft für Ost und West (1990) (cited as de Maiziere et al., p.). 516 See de Maiziere, Anwalt der Einheit, 110. 517 De Maiziere et al., V (Vorwort) (my italics). The original reads: “… in der heutigen Bundesrepublik Deutschland solllte die friedliche Revoution im anderen Teil Deutschlands Auftrag sein, mit dem Zusammenwachsen zur Einheit eigene Fehler zu korrigieren und die soziale zur Öko-Sozialen Marktwirtschaft umzubauen.” 518 See de Maiziere et al., V (Vorwort). 519 See de Maiziere, Anwalt der Einheit, 72.

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tant decisions in enterprises, further improvement of social security, and the improvement of environmental protection.520 They say that eastern as well as western states must implement reforms in order to satisfy material necessities of life, social justice, and the people’s immaterial environmental needs.521 The authors emphasize the failure of the socialist command economy.522 Part of their political and constitutional program is a free market economy based on competition and private property in the means of production.523 Within a market economy, however, the authors stand for a comprehensive redistribution of income according to the principles of fairness and equality.524 They are critical of social security in the FRG not providing sufficient services and not covering everyone. Moreover, they say that appropriate housing must be provided to the homeless and the reintegration of long-time unemployed into work life must be facilitated “if need be by the state”.525 The authors argue that unemployment must be reduced by environmentally protective investments, worker qualification, flexible reduction of working hours, and improved measures to integrate “problem groups” (i.e., disabled) in the workplace.526 They emphasize that the distribution of wealth in the FRG “hardly complies with the principle of fair wealth distribution”.527 As regards the concentration of productive capital (Produktivvermögen) in the hands of a few, they consider the situation in the FRG to be “even worse” because 5% of the population own more than 90% of all productive capital.528 The authors think that this unfair distribution of wealth has important implications for democracy because the ownership of productive capital is an important source of political power. “The exercise of power based on productive capital is, to

520 See de Maiziere et al., 4. Part A. of the book (pp. 1 – 167) is written by Lutz Wicke and Thomas de Maiziere, Part B (pp. 169 – 179) by Lothar de Maiziere. However, the authors emphasize in the preface that all three authors stand behind the basic arguments of the entire book (“Aber in den Grundlinien stehen alle drei Autoren zum ganzen Text”). 521 See de Maiziere et al., 5. 522 See ibid., 7. 523 See ibid., 25 ff. 524 See ibid., 28 ff. 525 Ibid., 72, 73. 526 Ibid., 83. 527 Ibid., 87. 528 Ibid., 88.

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the most extent, not democratically legitimated”.529 They want to resolve the problem by broadening workers’ participation in productive capital.530 Within enterprises the authors promote a much stronger participation of workers in entrepreneurial decisions than is the case in the FRG.531 The weight of these political and constitutional statements is further enhanced by the fact that de Maiziere and parts of his party made them in open defiance of what they knew the FRG government expected from them.532 For example, de Maiziere told Rühe openly that the East CDU was committed to a social and ecological economy that must not be equated with market economy.533 At the East CDU’s first party convention under de Maiziere’s leadership, the party adopted as part of its statute the position of a “market economy with social obligation in ecological responsibility” (“Marktwirtschaft mit sozialer Bindung in ökologischer Verantwortung”). It rejected the adoption of the West CDU’s program.534 The FRG government, on the other hand, did not at all appreciate criticism of the FRG’s system. To the contrary, conservative western elites did everything to prevent any influence of eastern thought on the western system. They wanted the western system to be perceived as the winner of the historical battle between capitalism and communism, and they were convinced that the winners did not need the losers’ reform proposals. This western attitude is reflected in de Maiziere’s criticism that there had been no real debate, neither prior to nor during unification, about a new concept for unified Germany. “It was not appreciated to talk about mistakes or necessary reforms of the western system.”535 The fact that de Maiziere still defended his political course shows that he perceived the East Germans to have given his government a strong popular mandate to do so.

529 Ibid. 530 Ibid.; the authors’ specific proposal to realize this participation by way of the “vermögenswirksame Leistung” of 936 DM per year, however, is, to say it mildly, ridiculous. 531 See de Maiziere et al., 91. 532 For political statements like de Maiziere’s by other leading members of the East CDU, see Jäger/Walter, 20. Voices within the East CDU that wanted the party to be closer to the West CDU’s party line were mostly represented by Martin Kirchner, the East CDU’s new Secretary General, see Jäger/Walter, 49 ff., 53. These voices did not prevail, see ibid. 533 Jäger/Walter, 33. 534 Ibid., 42. 535 De Maiziere, Anwalt der Einheit, 111.

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In summary, de Maiziere’s and the East CDU’s political agenda displayed a strong emphasis on individual empowerment and environmental protection. It, thus, explicitly transcended the FRG’s GG with its emphasis on civil rights and its rather weak elements of real-social (as opposed to formal-legal) equality, social justice, and environmental protection. Finally, the agenda was openly critical of the FRG’s social and constitutional order and called for specific reforms. Therefore, the vote for the Alliance for Germany, led by the East CDU and Lothar de Maiziere, cannot be interpreted as a vote for an unconditional adoption of the GG. It must instead be interpreted as a popular mandate for unification and the general adoption of the GG, but at the same time for the preservation and transfer to unified Germany of two core elements of the revolutionary constitutional agenda: individual empowerment and environmental protection. It must also be noted that an important element of the revolutionary agenda was missing in de Maiziere’s and the East CDU’s political program: public freedom through people’s direct participation in government as institutionalized by the RTs. Even though de Maiziere had participated in the CRT, he was still a party man who clearly stood for the party system, representative democracy, and against people’s direct participation in government. De Maiziere explicitly stated that, since the GDR had not even had experienced indirect democracy, it should not take the second step prior to the first by engaging in direct democracy.536 The people expressed their preference for the party system by voting for the big parties in general (90.7% of the vote went to the big parties CDU, SPD, PDS, DSU, and Bund Freier Demokraten)537 and de Maiziere’s East CDU in particular. On the other hand, they clearly withdrew their support from the political groups that stood for public freedom. The citizens’ movements, which had joined forces in the Bündnis 90, received only 2.9% of the vote.538 That was somewhat different at the

536 De Maiziere on the RTD as quoted in: Häberle, JöR 1990. 326. De Maiziere’s statement is objectively wrong because the GDR had made very good practical experiences with direct democracy through the RTs and the citizens’ movements during the Revolution. On the other hand, the GDR had made very negative experiences with the representative party system, under which the SED had seized power and had established a party dictatorship. For this typical misjudgment of the dangers of direct democracy on the one hand and the party system on the other, see Arendt, On Revolution, 263. 537 See Neubert, 368. 538 See supra, 97; Neubert, 357, 368.

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communal level, where free elections were held on May 6, 1990 and where more citizens’ movements’ representatives were elected into the communal parliaments. Still, even at the communal level the citizens’ movements could only win between 6% (Region Frankfurt/Oder) and 13% (Region Gera) of the vote.539 Hence, the election results must also be interpreted as a popular vote for the representative party system and against public freedom. This conclusion is confirmed by the fact that, after the elections, the people’s support for the RTs withered away. Even where RTs were not dissolved and instead tried to continue their work as extra-parliamentary political institutions, their actual impact on city and communal governments became so marginal that the people could no longer be motivated to participate. As a result, RTs practically disappeared.540 Where, in exceptional cases, extra-parliamentary RTs were more influential because they were met with a cooperative attitude by city mayors and parliamentarians, they still struggled with the fact that citizens were withdrawing into the private sphere.541 What became visible after the elections was a fundamental change in the nature of the people’s activity. Where, prior to the elections, there had been a comprehensive interest in politics and an eagerness to leave the private sphere in order to reclaim government from the SED, after the elections the people returned to their private lives and left politics to elected representatives.542 This change in the nature of the people’s activities was accompanied by a change in the character of parts of the citizens’ movements. Where citizens’ movements had originally worked to initiate political discourse aiming at opinion building and participation in consensual political decision making, parts of them now focused on selective, topic-oriented mobilization of the masses directed at putting pressure on elected politicians in order to promote specific interests.543

539 Haufe, in: Haufe/Bruckmeier (Hrsg.), 106. 540 For the city of Rostock, see Izeki, 110 ff. 541 An example is the RT in the city of Malchow, see Izeki, 152, 154. For a similar problem in the city of Güstrow, where the RT developed into a topic-oriented, extra-parliamentary lobby group, see Izeki, 133 ff., 156. 542 Izeki, 163. 543 For the beginning of this development, see Wielgohs/Schulz, in: Joas/Kohli (Hrsg.), 236 ff., who write that the citizens’ movements were trying to distinguish themselves as “defenders of social interests”. Ulrike Poppe, founding member of Democracy Now, says, the difference between a citizens’ initiative on the one

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These parts of the citizens’ movements, hence, became very much like citizens’ initiatives in the old FRG, which Bernd Guggenberger, already in 1980, had characterized as motivated by the wish to resolve specific problems through, among other things, influencing public opinion and putting pressure on elected party politicians.544 These citizens’ initiatives did not stand for citizens’ direct participation in government,545 even though the problem of the party system had been understood: “[the big parties (Volksparteien)] … cut off the individual’s authentic self-experience as well as her political existence”;546 there is an “antagonism in principle” between citizens’ initiatives and the parties; and “if one wants to reach new shores of a different policy, one must, to a certain degree, ‘overcome’ the parties, at least the restrictive mechanisms of the anti-participatory party policy.”547 To solve the problem, Guggenberger had proposed to integrate citizens’ initiatives into the party system by founding a new party, a so-called “anti-party party” (“Antiparteienpartei”).548 This proposal had been implemented through the founding of the party Die Grünen in the FRG on January 13, 1980.549 It is noteworthy that, in the aftermath of the 1990 elections in the GDR, Die Grünen tried to suppress all attempts by the citizens’ movements to introduce elements of direct citizens’ participation in both government and the party.550 Other parts of the citizens’ movements became political parties or election alliances.551 The elections had forced the citizens’ movements to become competitive. They had to develop effective, i.e. hierarchical, structures, sound-bite-proof programs, and they needed to be different

544 545 546 547 548 549 550 551

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hand and a citizens’ movement of the revolutionary time on the other is that a citizens’ initiative focuses on the solution of a specific problem, while the citizens’ movement always also strives for “solutions in principle” (“prinzipielle Lösungen”), see Schmidtbauer, 161. See Guggenberger, 18, 19. See ibid., 18 ff., in particular the overview of the definitional elements of citizens’ initiatives on pp. 20-22. Guggenberger, 67. Ibid. Ibid., 114 ff. Ibid. See Izeki, 114 ff.; infra, 114 f.; for the general attitude of the parties in the FRG towards the citizens’ movements in the GDR, see supra, 56. See for this development Haufe, in: Haufe/Bruckmeier (Hrsg.), 99 ff.; Wielgohs/ Schulz, in: Joas/Kohli (Hrsg.), 238 ff.

B. My thesis

from their competitors. Gone were the days of mutual listening and consensus-building discourse. It was about winning or losing now. In summary, the Revolution’s second phase saw East Germans voting for German unification but not for an unconditional adoption of the GG. Instead, they wanted the GG while preserving the revolutionary achievements of individual empowerment and environmental protection. At the same time, they gave up on public freedom and decided in favor of the party system. This popular movement found commensurate institutional reactions. b) Institutional reactions The GDR institutions that reacted to the popular movement during the Revolution’s second phase were the newly elected VK, the newly elected government, the political parties, and the RTs. Their reactions reflect the popular movement’s constitutional agenda: German unification while preserving the constitutional principles of individual empowerment and environmental protection on the one hand and abandoning public freedom on the other. Finally, even the FRG’s Federal Chancellor reacted to the popular movement in the GDR. That the new VK in general and the de Maiziere government in particular saw themselves as institutionalizations of the 1989 Revolution and its constitutional achievements is already visible in the act of forming the first freely elected government in the GDR. De Maiziere used this opportunity for a last bow to bygone times of public freedom when an integrative and cooperative working style had characterized the atmosphere at the RTs. Even though the elections had given de Maiziere a secure majority in the VK to form a Christian-liberal coalition (such as the one governing in Bonn at the time), he invited the SPD to participate in his government and formed a so-called “Great Coalition” (Grosse Koalition) consisting of the parties of the Alliance for Germany (CDU, DSU, DA); the Liberals, DFP, BFD, and FDP; and the SPD.552 Winkler is certainly right when he identifies “the difficulties of the problems that had to be resolved, including a number of constitutional amendments”, as a major reason for de

552 See Winkler II, 564 f.

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Maiziere’s decision.553 It should not be overlooked, however, that de Maiziere himself also justified his decision by self-consciously referring to the Revolution as the East Germans’ common constitutional achievement: “… on the other hand we thought that the turnaround belonged to all” (“andererseits waren wir der Meinung, die Wende gehöre allen”).554 It should also be noted that de Maiziere did not extend an invitation to nonparty citizens’ movements. The de Maiziere government’s next act expressing its self-perception as an institutionalization of the people’s revolutionary achievements was the coalition agreement between the parliamentary groups of the parties that formed the government.555 The new government used this agreement to explicitly reconnect with a major manifestation of revolutionary achievements: the RTD. Referring to the GDR’s constitutional situation during the transitional period until German unification, the coalition agreement says that “[w]hen it comes to the further shaping of the constitution, the coalition is in favor of transitional provisions that consider the [GDR] Constitution of 1949 as well as the Draft Constitution of the Round Table [i.e., the RTD].”556 The government followed up on this statement by establishing a commission to draft a constitution for the GDR based on the GDR’s 1949 Constitution and taking into account the RTD.557 The newly elected government, thus, understood itself as having a popular mandate to at least consider the constitutional principles manifested in the RTD as constitutional principles of the GDR for the transitional period until German unification. The coalition agreement explicitly states that an important aspect of the revolutionary principle of individual empowerment shall be embedded in the constitution: “[s]ocial security, particularly an obligation to promote

553 See ibid., 564. 554 De Maiziere, Anwalt der Einheit, 76. 555 See the coalition agreement “Grundsätze der Koalitionsvereinbarung zwischen den Fraktionen der CDU, der DSU, dem DA, den Liberalen, DFP, BFD, FDP und der SPD“ of Apr. 12, 1990 (Coalition Agreement), reprinted in: v. Münch (Hrsg.), Dokumente der Wiedervereinigung Deutschlands, 163 ff. 556 Coalition Agreement, in: v. Münch (Hrsg.), Dokumente der Wiedervereinigung Deutschlands, 169 (my italics); the original reads: “Die Koalition tritt bei der weiteren Gestaltung der Verfassung für Übergangsregelungen ein, die sowohl die Verfassung von 1949 als auch den Verfassungsentwurf des Runden Tisches berücksichtigen.“ 557 See Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 31.

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labor, shall be embedded in the constitution.”558 It, moreover, explicitly refers to a possible amendment of the GG by integrating the principle of individual empowerment: When elaborating a new GDR Constitution or, if that should not be undertaken, when amending the GG, it is the government’s goal to introduce social rights as non-enforceable individual rights. This applies primarily to the right to labor, housing, and education. These rights will be guaranteed as state-goal provisions [Staatszielbestimmungen].559

Even though this was less than what the CRT’s Social Charter and the RTD had demanded (they wanted social rights as judicially enforceable individual rights, not only as state-goal provisions), it still shows that amending the GG by transferring revolutionary constitutional principles to unified Germany was the de Maiziere government’s explicit goal. The government considered that to be part of the popular mandate given to it by the voters in the March 1990 elections. This is confirmed in de Maiziere’s government declaration (Regierungserklärung) of April 19, 1990, in which he emphasized, “We have a democratic mandate. The people of the GDR have given it to us and nobody else.”560 De Maiziere began his government declaration by emphasizing the sovereign people’s revolutionary act and that this act constituted the basis of his government. He then, however, emphasized the revolutionary act’s meaning not only for the GDR but for unified Germany: “The people have become aware of themselves [Das Volk ist sich seiner selbst bewußt geworden] …. And out of the call ‘We are the people!’ grew the call

558 Coalition Agreement, in: v. Münch (Hrsg.), Dokumente der Wiedervereinigung Deutschlands, 169; the original reads: “Die soziale Absicherung, insbesondere eine Pflicht zur Arbeitsförderung, soll in der Verfassung verankert werden.“ 559 Coalition Agreement, in: v. Münch (Hrsg.), Dokumente der Wiedervereinigung Deutschlands, 163 (my italics); the original reads: “Bei der Ausarbeitung einer neuen Verfassung der DDR oder, falls es nicht dazu kommt, bei der Veränderung des Grundgesetzes, ist es das Verhandlungsziel der Regierung, die sozialen Sicherungsrechte als nicht einklagbare Individualrechte einzubringen. Das gilt vornehmlich für das Recht auf Arbeit, Wohnen und Bildung. Diese Rechte werden in Form von Staatszielbestimmungen gewährleistet.“ 560 See Government Declaration Apr. 19, 1990, p. 3; the original reads: “Wir haben einen demokratischen Auftrag. Den haben uns die Bürger der DDR gegeben, und niemand sonst.”

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‘We are one people!’. The people in the GDR constituted itself as part of a people, as part of that one German people that shall grow together again.”561

With these words de Maiziere highlighted that the East Germans had acted as the pouvoir constituent, but that they had acted not for the GDR but as part of a much more comprehensive “German people that shall grow together again”. De Maiziere, thus, clearly underlined the constitutional meaning of the East Germans and their revolutionary act for the entire German people and for unified Germany, a fact that he wanted to see reflected in unified Germany’s GG and in unified Germany’s constitutional order more generally. The East Germans’ constitutional meaning for unified Germany is also expressed in another part of the government declaration. On p. 9 de Maiziere said that German unity should be achieved “in a contractually agreed upon way” according to Art. 23, 2 GG.562 This is an important modification of the simple accession based on Art. 23, 2 GG, which does not speak of a contract. Insisting on a contract was de Maiziere’s way to make sure that the East Germans were considered as equal partners in the project of German unification. A contract was his legal instrument to transfer some of the people’s revolutionary achievements to unified Germany. De Maiziere reiterated and specified this point when he said that the people of the GDR had something to contribute to German unity. They would contribute “established values”, their “sensibility for social justice”,563 as well as their “identity” and “dignity”.564 He emphasized that the East Germans would have a decisive voice in determining the way to German unity 565 and that “[b]oth German governments agree that the goal of the negotiations cannot be a business partnership [geschäftliche Partnerschaft] but must be a real community [eine wirkliche Gemeinschaft].”566 These statements are clear institutional reactions to the East Germans’ will

561 Government Declaration April 19, 1990, p. 3 (my italics). 562 See Government Declaration Apr. 19, 1990, p. 9 (my italics); the original reads: “Beide Anliegen, Tempo und Qualität, lasssen sich am besten gewährleisten, wenn wir die Einheit über einen vertraglich zu vereinbarenden Weg gemäß Art. 23 des Grundgesetzes verwirklichen” (my italics). 563 See Government Declaration Apr. 19, 1990, p. 9. 564 Ibid., p. 10. 565 See ibid., p. 3: “Das Ja zur Einheit ist gesprochen. Über den Weg dahin werden wir ein entscheidendes Wort mitzureden haben.” 566 Government Declaration Apr. 19, 1990, p. 26.

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to preserve and transfer to unified Germany some of their revolutionary achievements. As regards specific goals of his government and specific contents of his popular mandate, de Maiziere pointed out the need to replace the “statedetermined command economy with an ecologically oriented social market economy”.567 It is important to note, however, that he did not promote an adoption of the FRG’s economic, social, and constitutional regime. Instead, he emphasized the revolutionary constitutional achievements of liberation, individual empowerment, and environmental protection and pointed out the FRG’s need to reform by arguing for the establishment of an “ecologically obliged social market economy”, which he planned to develop “in cooperation with the FRG and the EC”.568 A key element of an aspired economic union between the GDR and the FRG was the confirmation of the Bodenreform-expropriations.569 A further key element was environmental protection.570 De Maiziere, moreover, emphasized the government’s responsibility for safeguarding appropriate housing for all citizens, protecting tenants, and controlling rents (Mietpreisbindung).571 He further pointed out that the public vote obliged the newly elected government to promote employment and provide jobs, particularly for women.572 As regards abortion, de Maiziere was cautious at first. He said he knew and understood the problems that lead to a decision against the unborn life and that “we need more decisions for life”.573 Accordingly, he emphasized the necessity for economic and ideal help, particularly for women, that would contribute to pro-life decisions.574 Required were, in de Maiziere’s view, the comprehensive provision of day care, more flexible and shorter working hours, and more part-time jobs.575 Realizing equal treatment (as opposed to mere equal rights; Gleichstellung as opposed to mere Gleichberechtigung) of women in the professional world as well as in society

567 Ibid., p. 11. 568 Ibid., pp. 8 and 11. 569 Ibid., pp. 8 and 18: “Die Ergebnisse der Bodenreform stehen nicht zur Disposition.” 570 Ibid., p. 8: “[D]ie Gewährleistung einer lebenswerten und lebensfähigen Umwelt.” 571 Ibid., p. 17. 572 Ibid., p. 19. 573 Ibid. 574 Ibid. 575 Ibid., p. 20.

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in general was an important goal of the new government.576 How strongly de Maiziere and his government considered themselves to be representatives of the revolutionary people was confirmed yet again when, with respect to abortion, they immediately responded to the people in the streets. After forceful demonstrations had reminded the new government that the people were not willing to compromise on certain constitutional issues, including abortion, the government decided to preserve the GDR’s time-phase model instead of taking over the FRG’s indication model.577 To fully appreciate the government declaration’s meaning for the understanding of the new government’s self-perception, it must be noted that de Maiziere, at this point in time, could no longer be ignored as “some socialist” who was still reminiscing about the good old times and ideas. When he delivered his government declaration in April 1990, de Maiziere was Minister President of the GDR’s first freely elected, CDU-led government. The government declaration was no individual political opinion written by some hopeless idealist. It was the official declaration of the GDR’s first democratically legitimated coalition government, delivered by the man who, a few weeks later, would be negotiating the terms of German unification with the FRG government. And it clearly reflected the Revolution’s constitutional principles: liberation, individual empowerment, and environmental protection. It also manifested the new government’s intention to transfer these principles to a unified Germany. At the same time, the government declaration was conspicuously silent on public freedom. The declaration referred to the politically active people who had liberated themselves from tyranny and had taken over government as participants in citizens’ movements and RTs only as a phenomenon of the past: “The bearers of the peaceful Revolution in the fall of 1989 deserve an outstanding place in German history. That should always remain present and alive in this house” (“Die Träger der friedlichen Revolution im Herbst 1989 verdienen einen herausragenden Platz in der deutschen Geschichte. Das sollte in diesem Hause stets gegenwärtig und lebendig bleiben“).578 Even though de Maiziere wanted the revolutionary East Germans to be remembered, he did not ascribe to them an active political role for the presence or the future of either the GDR or unified Germany. Politics had been taken over by the party system and its central 576 Ibid. 577 See Kukutz, 164. 578 Government Declaration Apr. 19, 1990, pp. 3, 4; see also p. 27.

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institution, the parliament. De Maiziere identified “dictatorial centralism” (“diktatorischer Zentralismus”) and Stalinism as the socialist society’s core problems and emphasized every citizen’s self-determination and activity as important requirements for a society’s development.579 He also mentioned “decentralization of power” as a prerequisite for democracy.580 As a concrete measure to decentralize power, however, he only mentioned the reestablishment of the states (Länder) and the election of state parliaments.581 RTs or similar institutions played no role in de Maiziere’s government declaration. When, in the declaration’s last sentence, he referred to the “support, courage, and activity of all citizens” upon which his government relied for the implementation of its program,582 he was all party politician needing citizens’ “support, courage, and activity” only for the execution of his government’s program, not for the people’s direct participation in government.583 An early institutional reaction to the popular movement’s abandonment of public freedom came, unsurprisingly, from the political parties in the GDR. Since the CRT’s decision on January 28, 1990 to hold the first free VK elections on March 18, 1990,584 the former bloc parties East CDU and LDP, but also the DA and the SPD, had visibly reduced their participation in the CRT.585 Instead, they had focused on campaigning for the upcoming elections.586 The CRT’s authority was further undermined when, despite the CRT’s majority decision to the contrary, the East CDU, LDP, DA, and SPD invited guest speakers from the FRG to support their campaigns.587 The CRT dissolved after its last session on March 12, 1990, and so did most of the RTs all over the country shortly before or after the communal

579 580 581 582 583 584 585 586 587

Ibid., pp. 6, 7. Ibid., p. 25. Ibid. Ibid., p. 29. For this important difference between the party system and the council system, see Arendt, On Revolution, 264. See Richter, Bd. II, 1261. For example, by no longer sending their chairpersons to the meetings, see Izeki, 46, 47; see also Süß, DA 1991, 474 with a slightly different timing. See Izeki, 46, 47; Süß, DA 1991, 474 f. See Izeki, 47.

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elections on May 6, 1990.588 From the outset, RTs had considered the preparation of free elections as one of their major tasks. At first, however, it had remained open what would become of the RTs after the elections. After all, the RTs had been the results of people’s spontaneous reactions to the situation at hand; so nobody had an elaborate plan for their political future. Faced with the upcoming elections, power struggles increased not only between the political groups at the RTs but also between the party system on the one hand and the RTs as institutions of direct democracy on the other. Following the elections, Francesca Weil writes, the main reason for the regional RTs’ dissolution was that the de Maiziere government refused to further cooperate with them and rather relied on the existing regional bureaucracy.589 Another reason, according to Weil, was that many people working at the RTs had considered their role to be transitional until the election of new parliaments.590 Where RTs at the communal and city level wanted to continue their work after the elections, party representatives usually refused to recognize them as political institutions and denied cooperation.591 An example is the RT for the city of Rostock, which in its last meeting on June 9, 1990 decided to continue its work as a “counsel” to the city parliament and the city government.592 The city parliament’s majority flat-out rejected any cooperation with the RT.593 Big parties, namely the CDU, SPD, and parts of the PDS, argued that the successful constitution of a democratically elected city parliament had rendered the RT superfluous;594 its continued participation would undermine parliamentary democracy.595 Even Bündnis 90/Die Grünen, a party with strong roots in the citizens’ movements, displayed a strong aversion to direct, i.e.

588 For the RT in Güstrow, see Izeki, 113; for the regional RTs, see Weil, Zur Bedeutung Runder Tische, in: Thüringer Landtag (Hrsg.), 26 f.; and Weil, Verhandelte Demokratisierung, 227. 589 See Weil, Zur Bedeutung Runder Tische, in: Thüringer Landtag (Hrsg.), 27; and Weil, Verhandelte Demokratisierung, 227. 590 See Weil, Zur Bedeutung Runder Tische, in: Thüringer Landtag (Hrsg.), 27. 591 For the state of Thuringia, see Weil, Zur Bedeutung Runder Tische, in: Thüringer Landtag (Hrsg.), 27 ff. 592 See Izeki, 105; for a similar development of the RT for the region Halle, see Rupieper, in: Lintzel, 16. 593 See Izeki, 105 ff., 109, 111. 594 See ibid., 106; for a similar attitude of the CDU and the SPD in Güstrow, see ibid., 120; and Schmidtbauer, 130. 595 See Izeki, 106, 111.

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party-independent, citizens’ participation in government.596 In this situation, the RT in Rostock developed into an extra-parliamentary lobby group that selectively tried to mobilize the masses in order to push the city government toward specific decisions on specific issues.597 RTs as such only managed to retain some political influence where members of the citizens’ movements had been elected into government or parliamentary positions and were willing and powerful enough to allow for the RTs’ participation.598 Even then, however, it turned out to be very difficult to motivate citizens to participate in the RTs because most citizens withdrew into the private sphere.599 Another problem, particularly at the communal level, was that members of the citizens’ movements who had been elected into political offices were now caught up in their work as professional politicians, so that they had no time to engage in grass-roots activities.600 Against this background, it must be concluded that the RTs and the direct citizens’ participation in government they had institutionalized were blocked out by the party system.601 The Revolution’s second phase saw another important institutional reaction to the popular movement, which did not take place in the GDR. It happened in the FRG and demonstrates once more the Revolution’s meaning not only for the GDR but for Germany in its entirety. Helmut Kohl’s encounter with the East Germans in the city of Dresden on December 19, 1989 had a fundamental impact on Kohl’s policy on German unification. Kohl’s original position had been to stabilize the SED regime as part of a strategy to safeguard peace by stabilizing the East. On November 10, 1989, the day after the Wall had come down, he had given a speech in

596 For the state of Mecklenburg-West Pomerania, see ibid., 114 ff.; see also supra, 106. 597 See ibid., 109 ff. Such issues were, for example, a right to childcare in day care, the improvement of housing conditions for aliens, the organization of protests against the first gulf-war, rent increases, or the construction of a coal-fired power plant, see Izeki, 109 f. For a similar development of the citizens’ movements, see supra, 106 f. 598 The only example of such a development that I could find was in the city of Malchow, where the city mayor actively integrated the local RT into the city government, see Izeki, 135 ff., 153 ff. 599 See ibid., 152 f. 600 See ibid., 103. 601 See, for example, Weil, Zur Bedeutung Runder Tische, in: Thüringer Landtag (Hrsg.), 14; and Urich, 420 f.

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Berlin in which he had emphasized that “thoughtfulness” was required going towards a “common future” and that “liberty in particular for our fellow countrymen in the GDR” was the most important goal at the moment.602 Kohl had not mentioned unification.603 With that he had been in agreement with the entire West German party establishment as well as with the opposition groups in the GDR at the time.604 Still, on November 16, 1989, Kohl had already emphasized that the FRG “will of course respect [every decision] that the people in the GDR will make in free selfdetermination”.605 In the so-called “ten-point-plan” (“Zehn-Punkte-Plan”), which Kohl had presented to the FRG’s Bundestag on November 28, 1989, he had still assumed the GDR’s sovereignty and had only offered extended cooperation with the goal of establishing a future federation. Kohl had merely said that unification “remains the political goal of the federal government.”606 It was not until 100,000 people in Dresden had used Kohl’s presence on December 19, 1989 to acclaim that they wanted unification that he gave up his reservations and pursued unification unrestrictedly. These people’s acclamation is considered the “real mainspring of his foreign policy”.607 Constitutionally, that means that even the FRG’s Federal Chancellor reacted to the East Germans’ revolutionary will. The same responsiveness reoccurred later during the negotiations over German unification. It enabled the East Germans to transfer at least parts of their constitutional agenda to unified Germany, as I will show in Chapter IV.608 c) Manifestation through law The legal manifestation of the second phase’s constitutional achievements was determined by the challenge to combine the preservation of revolutionary constitutional achievements with the preparation of German unifi-

602 603 604 605 606 607

Kohl, quoted in: Winkler II, 518. See Winkler II, 518. See ibid., 519. Kohl, quoted in: Teltschik, in: Der Spiegel, 23. Sep. 1991, 111 (my italics). Kohl, quoted in: Winkler II, 523. Weidenfeld, quoted in: Neubert, 313. Winkler writes that Kohl left Dresden on Dec. 20, 1989 convinced that there was no alternative to unification in the near future, see Winkler II, 543. 608 See infra, 131 ff.

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cation. The most important laws the newly elected VK adopted to meet this challenge were the Constitutional Principles Law (Verfassungsgrundsätzegesetz, VGG),609 the Municipal Constitutional Law (Kommunalverfassungsgesetz),610 and the Law for the Introduction of States (Ländereinführungsgesetz, LEG).611 The VGG, adopted on June 17, 1990, was the product of a compromise between, on the one hand, Bündnis 90, PDS, and parts of the SPD, who wanted to adopt the RTD as a new GDR constitution, and, on the other hand, the CDU, DA, and DSU, who rejected a new GDR constitution and instead wanted fast accession to the FRG.612 As a result of the compromise, the VK did not formally adopt a new constitution for the GDR but instead adopted the VGG, which built upon the existing GDR Constitution of 1968/1974 but modified it fundamentally in order to account for revolutionary achievements. The VGG’s character of compromise is already reflected in its preamble. It explicitly refers to “the peaceful and democratic Revolution” that had taken place in the GDR in the fall of 1989 and points out that the VGG “complements the GDR Constitution for a transitional period” in expectation of fast German unification. At the same time, it emphasizes that all constitutional principles that contradict the VGG are void. By establishing binding principles for the interpretation and application of all laws in the GDR, including the GDR Constitution (Art. 1 II VGG), the VGG practically became the supreme law of the land.613 Substantively, the VGG combined principles of the GG with the revolutionary principles of individual empowerment and environmental protection. For example, Art. 1 I VGG committed the GDR to be a free, democratic, federal, social, and ecological state bound by the rule of law. Art. 2 VGG provided for the protection of private property, the use of which must serve both the public good and the conservation of nature. Art. 3 I VGG protected economic freedom and personal autonomy (Privatautonomie). Except for the ecological elements, these were civil rights that were also protected by the GG. Revolutionary achievements were embedded in Art. 6 VGG, which protected the natural environment, and Art. 7 VGG, which established a state obligation to protect labor and to “pro-

609 610 611 612 613

GBl. DDR 1990 I, S. 299 f. Ibid., S. 255 ff. Ibid., S. 955 ff. See Würtenberger, in: HStR VIII, § 187 Rn 30. See ibid. Rn 32.

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mote the individual’s right to lead a dignified life in social justice and economic freedom through work”. Art. 7 VGG, moreover, explicitly obliged the state to establish the necessary framework conditions to realize this social right.614 Art. 9 VGG prepared German unification by granting a 2/3 majority in the VK the authority to amend the constitution through state treaties, a possibility that was applied to the Treaty on the Currency, Economic, and Social Union as well as to the UT.615 Finally, Art. 10 VGG provided that the VGG would remain in force until “a” GG (“ein” GG) would enter into force. The explicit referral to “a” GG (instead of “the” GG) can be seen as another evidence for the VK’s unwillingness to unconditionally adopt “the” existing GG. The wording indicates that the VK distinguished between an unconditional adoption of “the” GG on the one hand and the aspired unification based on Art. 23, 2 GG, which was hoped to bring about the entering into force of “a” (reformed and amended) GG on the other. The VGG is yet another paradigm case of an unconventional adaptation by building on existing constitutional structures but fundamentally changing them in an unconventional way to meet the revolutionary people’s demands.616 In adopting the VGG, the VK, again, obeyed the existing GDR Constitution’s formal requirements for constitutional amendments, such as Art. 63 II (2/3 majority) and Art. 106 (explicit modification of the constitution’s text).617 Substantively, however, the VGG fundamentally changed existing constitutional law in order to manifest revolutionary achievements and prepare German unification, for example by adopting the protection of private property and personal autonomy. Moreover, without formally being a new constitution, the VGG substantively and practically became the new supreme law of the land.618 The “Communal Constitution Law”, adopted on May 17, 1990, guaranteed communal self-determination and, hence, was the legal manifestation of the Revolution’s break with the old GDR’s centralist communal constitutional law.619

614 For a similar conclusion, see ibid. Rn 31; and Ritter, 88. 615 See Würtenberger, in: HStR VIII, § 187 Rn 34 f. 616 For the general concept of „unconventional adaptation“ and further examples, see supra, 80 f., 81 f., 96 and infra, 136 f., 147 f., 157, 236. 617 See Quaritsch, VerwArch 1992, 319. 618 See Würtenberger, in: HStR VIII, § 187 Rn 32. 619 See ibid. Rn 23.

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Finally, § 1 of the LEG, adopted on June 22, 1990, established the new states of Mecklenburg-West Pomerania, Brandenburg, Saxony-Anhalt, Saxony, and Thuringia.620 C. Conclusion My analysis shows that the 1989 Revolution was a real revolution in the sense of a real event during which the people of the GDR became aware of themselves as the sovereign, the constituent power, and acted upon that awareness in an unorganized way, i.e. not organized along the lines of ideologies or party programs. In doing so, the people violated the rules of the SED regime but did not practice violence as brute force. Instead they remained peaceful, reasonable, and highly disciplined. The people expressed their will through political action and by highly differentiated acclamation. Their political action consisted of demonstrations in the streets and active participation in government through RTs at the local, regional, and national level. The people’s political action provided their Revolution with an irresistibility that forced institutional reactions, such as the opening of the Berlin Wall, the abolition of the SED dictatorship, and the establishment of RTs. Through political action and commensurate institutional reactions, the people pursued and achieved various constitutional goals, some of which were made durable by way of legal manifestation. During the Revolution’s first phase, the people achieved liberation from the SED tyranny, an achievement that found its legal manifestation in traditional constitutional civil rights guaranteed by the VGG in combination with the fundamentally amended GDR Constitution, which remained in force until German unification. The people, moreover, called for the constitutional principle of individual empowerment. According to this principle, the government is constitutionally obliged to create a social environment in which constitutional rights can become a social reality for everyone instead of remaining mere formal-legal positions. Individual empowerment was legally manifested in the Social Charter, the RTD, and the VGG. The same is true for constitutional environmental protection. Finally, the people institutionalized the principle of public freedom by 620 See ibid. 37; and Quint, The Imperfect Union, 105. According to the Unification Treaty (Anlage II, Kapitel II, Abschnitt II), the LEG entered into force on October 03, 1990 and remained in force upon German unification.

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establishing and working in RTs all over the country. During the Revolution’s first phase, the East Germans wanted to combine these principles in a new form of government for a new sovereign GDR. That changed during the Revolution’s second phase, when the people gave up on a sovereign GDR and instead, in the first free VK elections on March 18, 1990, voted for fast accession to the FRG and the adoption of the GG. However, contrary to the dominant opinion, my analysis shows that the people did not vote for an unconditional adoption of the GG. Instead, they wanted to preserve and transfer to unified Germany the constitutional principles of individual empowerment and environmental protection. At the same time, they abandoned public freedom by supporting the party system, doing nothing to legally manifest the RTs, and by generally withdrawing into the private sphere after the elections. Citizens’ movements and RTs that continued to work after the elections did not manage to preserve public freedom and instead mostly developed into extra-parliamentary lobbyists in a representative democracy controlled by the party system. Finally, it is an important characteristic of the 1989 Revolution that it achieved revolutionary change not by a complete abolition of the existing institutional framework but through acts of revolutionary reform. The revolutionaries built upon the existing institutional framework and changed it in unconventional ways in order to implement revolutionary demands. Before I move on to the question of how the people managed to transfer the preserved elements of their constitutional agenda to unified Germany and what became of them there, I want to address a question of more general constitutional relevance: why did the people abandon public freedom after such important writers like Thomas Jefferson and Hannah Arendt had recognized it as the ultimate goal, “the lost treasure”, of revolutions and after the people themselves had experienced its joys?621 First it should be noted that the abandonment of public freedom in the final stages of a revolution is a common phenomenon of revolutions in modern times. Arendt writes that all council systems that had sprung up during various revolutions (France 1870/1871, Russia 1905 and 1917, Germany 1918/1919, and Hungary 1956) eventually were blocked out by the party system.622 Even with respect to the American Revolution, which 621 See Arendt, Between Past and Future, 5; Arendt, On Revolution, 215 ff.; supra, 66. 622 See Arendt, On Revolution, 262 ff.

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she considers a success in founding a new form of government,623 Arendt complains that the emphasis shifted almost at once from the … creation and partition of power … to the Bill of Rights … it shifted, in other words, from public freedom to civil liberty, or from a share in public affairs for the sake of public happiness to a guarantee that the pursuit of private happiness would be protected and furthered by public power.624

Arendt even considers the American Revolution a failure in that “the Revolution, while it had given freedom to the people, had failed to provide a space where this freedom could be exercised” because “[o]nly the representatives of the people, not the people themselves, had an opportunity to engage in those activities of ‘expressing, discussing, and deciding’ which in a positive sense are the activities of freedom.”625 In support of her view, Arendt cites Lewis Mumford, who referred to the founders’ failure to incorporate the townships into either the state or the federal constitutions as “one of the tragic oversights of the post-revolutionary political development”.626 Against this background, Arendt draws a strong conclusion with respect to the American Revolution’s success in constitutionalizing public freedom: “Paradoxical as it may sound, it was in fact under the impact of the Revolution that the revolutionary spirit in America began to wither away, and it was the Constitution itself, this greatest achievement of the American people, which eventually cheated them of their proudest possession.”627 It is important to note that Arendt, unlike Charles Beard, draws this conclusion with respect to the American Revolution’s political success, not with respect to its effectiveness in changing America’ s social structure. But, even though Arendt eloquently explains why the constitutionalization of the council system would have been the key to preserving public freedom,628 she does not tell us why all these revolutions apparently made the same mistake. If public freedom in the sense of citizens’ direct participation in government is so great, why do people give up on it even if their revolution, otherwise, succeeds?

623 624 625 626 627 628

See ibid., 165 ff. Ibid., 135. Ibid., 235. Mumford, quoted in: Arendt, On Revolution, 235. Arendt, On Revolution, 239. Ibid., 277 ff.

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Based on his analysis of American constitutional history, Ackerman’s answer would most probably start with two words: “Dualist Democracy”. In his analysis of American citizens’ political life under the existing American Constitution,629 Ackerman differentiates between times of higher lawmaking and times of normal politics.630 In his view, it is only during times of higher, i.e. constitutional, lawmaking that the average American citizen is willing to leave her private sphere in order to actively engage in politics to an extent that goes beyond voting for politicians in elections. The prerequisite for such an increased political engagement is that a political institution – the President, Congress, the Supreme Court, or one of the political parties – has brought to the citizens’ attention an issue of fundamental importance that is capable of attaining the citizens’ sustained attention and causes profound discussion. Only if a “substantial number of citizens” believe that there is something “really wrong” with America’s higher law, Americans have been willing to leave their private sphere and engage as citizens.631 During times of normal politics, however, citizens focus on their private lives and leave politics to elected politicians. During such times, the only political activity citizens can be motivated to engage in is going to the polls and vote on Election Day. Ackerman’s concept of Dualism seems to give a realistic account of political life in America. Confronted with the question of why things are as Dualism describes them, Ackerman answers: because Dualism fulfills “the expressive needs of private citizens” in that it leaves people enough time to engage in other things, such as work, religion, and other things they like to engage in.632 Applying these insights to the GDR in 1989/1990 one could argue that the concept of Dualist Democracy explains perfectly why the people, after a time of high political activity during the Revolution and after the elections in March and May 1990, returned to their private lives and were not interested in constitutionalizing public freedom. It is because that is what they wanted to do. They were willing to engage in politics as long as it

629 See Ackerman I, 296: “We have been searching for the spirit of this Constitution, not some better one” (italics in the original). 630 For this and the following, see Ackerman I, 230 ff.; supra, 18 f. Heckel expresses a similar understanding of German constitutional law, see Heckel, in: HStR VIII, § 197 Rn 68. 631 Ackerman I, 306, 307. 632 Ibid., 311, 312.

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was really important and something was “really wrong” with their higher laws (as well as with their political and social reality), but they wanted to return to and focus on their private lives as soon as that was no longer the case. During times of normal politics they wanted to leave things to elected party politicians. So, the 1989 Revolution and its aftermath as another example of Dualism describing and explaining constitutional reality? I am sure, Ackerman would like that. But, is it true? This book does not provide the space necessary to answer this question. I, therefore, want to limit myself to raising some concerns regarding the “dualist” explanation of the 1989 Revolution and its implications for constitutional law. My first concern is that Ackerman’s concept of Dualism basically denies the “very existence of public happiness and public freedom” for ordinary citizens. 633 Dualism is based on the assumption that “politics is a burden” and that the end of politics is freedom from politics in order to have the time to engage in private matters. Dualism assumes that people are only willing to devote their time to engaging in public affairs during times of emergency (New Deal) or blatant injustice (Civil Rights Movement). While Arendt has her own opinion on that,634 it is important to note that, even if Dualism was an accurate description of what happened in the GDR in 1989/1990, it does not sufficiently explain why it happened.635 If we ask why people have given up on public freedom, the Dualist answer (because it fulfills “the expressive needs of private citizens” in that it leaves people enough time to engage in other things) is not enough. It overlooks the important role played by the party system and by economic necessity in the GDR in 1990. It, moreover, displays a truncated understanding of freedom. The victory of the party system over the RT system at the end of the 1989 Revolution and the fact that the people did not insist on constitutionalizing the RT system was not necessarily the result of the people’s will to leave politics to elected politicians during times of normal politics. It may well be that the party system in combination with economic necessity forced this development upon the people. The political parties in the 1990 elections in the GDR did play the card of economic necessity. Looking at the election campaigns one can safely say that particularly the big parties 633 See for this and the following Arendt, On Revolution, 269 ff. 634 See ibid., 270 ff. 635 This may as well be true for the U.S.

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(CDU, SPD, and PDS) convinced the people that the elections were about the economy, even though different parties used that argument for different reasons (the CDU to promote fast unification, SPD and PDS to slow it down). Based on the “system of the welfare state”,636 the parties presented themselves to the voters as experts on economic growth. There can be no doubt that one of the reasons for de Maiziere’s success over the SPD in the March elections was that he succeeded in convincing voters that he would bring them the Deutsch Mark faster than his competitors. This is nicely expressed in a radio play by Markus Burkhard, who lets one of his characters respond to his grandma’s question who he voted for on March 18, 1990: “Alliance for Germany. That’s a no brainer. I too want the D-Mark” (“Allianz für Deutschland. Ist doch logisch. Ich will auch die D-Mark haben“).637 It is with respect to economic necessity as the people’s motive for voting for fast unification that Offe’s and Habermas’ arguments describe reality.638 Even though the people did not vote for an unconditional adoption of the GG, they definitely voted for fast unification in order to get fast access to the Deutsch Mark. Economic necessity in combination with the party system, thus, played an important role for the people’s vote for the big parties and for giving up on public freedom. After the elections, elected party representatives rejected citizens’ direct participation in politics with the paradoxical argument that citizens’ direct participation would undermine democracy. A popular argument was that citizens’ direct participation by way of plebiscites had contributed to Hitler’s destruction of democracy in the Weimar Republic.639 Confronted with the parties’ power cartel and their decided opposition to any kind of citizens’ participation, the citizens’ motivation to participate in politics strongly declined. This is reflected in an empirical study of the development of peoples’ political activity in the GDR territory between 1989 and 1993. The study shows that people’s perception of their real impact upon politics played an important role in their decision whether or not to engage

636 637 638 639

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Arendt, On Revolution, 269. Quoted in: Neubert, 369. See supra, 28 f. These authors overlook the difference between peoples’ direct participation in public affairs on the one hand and plebiscites on the other. The latter, according to Arendt, “… are an old concept of politicians who rely upon the mob”, see Arendt, The Origins of Totalitarianism, 107; supra, 88 f.

C. Conclusion

in politics.640 After the elections people considered their impact upon politics as rather low, whereas they considered it highest during the time between October 09, 1989 and March 18, 1990641 The study also shows that the people’s willingness to engage in politics was considerably lower in 1993 than in 1989.642 At the same time, the people’s conviction that politics should not be left to elected representatives had increased since 1989.643 These results imply that, even though the people felt the necessity to engage in politics, they didn’t do so because they considered their actual impact upon politics to be low. Reasons for that may be the parties’ power cartel in combination with the parties’ strict rejection of any kind of direct citizens’ participation in government. Economic necessity added to the problem in two ways. First, it further de-motivated people to engage in politics if they did not have a job. The aforementioned study shows that dissatisfaction with the economic situation in general and with individual unemployment in particular further decreased people’s motivation to engage in politics.644 Second, it deprived people of the time necessary to engage in politics if they had a job. It was in a situation thus determined by big parties and economic necessity that the East Germans chose private over public happiness and developed from citoyen into bourgeois.645 Against this background, the problem with public freedom does not seem to be a potential “disrespect for freedom” by “[l]oading responsibilities upon private citizens without compelling reasons”.646 It is rather a “lack of public spaces to which the people at large would have entrance”,647 i.e. a lack of freedom to engage in public politics. If our understanding of freedom includes public freedom we cannot be content with a form of government that only provides people with enough freedom from politics. To the contrary, the challenge is to develop a form of government that provides people with freedom to politics, with public spaces, and with free access to them.

640 641 642 643 644 645 646 647

See Opp, Die Enttäuschten Revolutionäre, 78 ff., 92. Ibid. Ibid., 29 ff., 31. See ibid., 109. See ibid., 206. For a similar development in other revolutions, see Arendt, On Revolution, 140. See Ackerman I, 312. See Arendt, On Revolution, 277.

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To meet this challenge is one of the big tasks of the future. Again, at this point, allow me to just sketch some thoughts. One is an idea that, according to Arendt, the young Marx had when [f]or a brief moment … [he] understood that the Kommunalverfassung (Communal Constitution) of the Parisian Commune in 1871, because it was supposed to become ‘the political form of even the smallest village’, might well be ‘the political form, finally discovered, for the economic liberation of labour’.648

Even though Marx, too, later sacrificed public freedom for party dictatorship and considered councils to be purely temporary revolutionary institutions,649 his early insight implies that the council idea may well contribute to the solution of the problem of economic necessity instead of being its victim. The answer might be a combination of the party system with the council system based on Arendt’s distinction between the political and the social as well as on her criticism of the traditional Western political thinking of politics as a means to an end, the end being freedom from politics.650 I don’t know the exact connection between these factors yet, and I don’t want to speculate (too much). What I do know, however, is that economic necessity deprives people of freedom in general,651 and the party system uses that to win and to further block the way to public freedom in particular. Against this background, RTs as institutions of people’s direct participation in government could provide a chance to break the vicious circle, and one could hold it with Jefferson, who said, “Begin them only for a single purpose; they will soon show for what others they are the best 648 Arendt, On Revolution, 257 quoting Karl Marx, Der Bürgerkrieg in Frankreich (1871), Berlin 1952, pp. 71 and 76 (italics in the original). 649 Two years later Marx wrote that “the workers must work towards the decisive centralization of power in the hands of the state” and “must not get distracted by the democratic idle talk about freedom of the communes, about self-government, etc.”, Marx, quoted in: Arendt, On Revolution, 325 note 64. Interestingly, with respect to the transitional character of councils/RTs, the late Marx finds himself in perfect agreement with the dominant opinion in German constitutional scholarship today. 650 For Arendt’s concept of the political, see Arendt, The Promise of Politics, 93 ff.; Arendt, Civil Disobedience, in: Arendt, Crises of the Republik, 82 ff.; Arendt, Thoughts on Politics and Revolution, in: Arendt, Crises of the Republic, 230 ff.; and Arendt, On Revolution, 225 ff., 269 ff. 651 See Arendt, On Revolution, 139: “… freedom can only come to those whose needs have been fulfilled …”.

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instruments”.652 RTs could be an answer to Roberto Unger’s call for institutional experimentalism.653 In order to save the 1989 Revolution’s experience with RTs from oblivion it would be necessary to constitutionalize RTs as institutions of public freedom during times of normal politics and (somehow) integrate them into the parliamentary system. Moreover, I think that the concept of individual empowerment must be realized in order to provide people with the time and energy necessary to engage in public politics. Finally, environmental protection is an existential requirement to continue our project of life on this planet. At the end of this chapter it remains to be noted that, once again, as in all other revolutions of modern times, when the time had come to constitutionalize revolutionary achievements, public freedom was lost. What was not lost, however, were the revolutionary constitutional principles of individual empowerment and environmental protection. These principles had made their way from the revolutionary people’s constitutional agenda over institutional reactions into legal manifestations in the GDR and were well on their way to unified Germany, as the next chapter will show.

652 Jefferson, quoted in: Arendt, On Revolution, 279. 653 See Unger, What Should Legal Analysis Become? (1996) for his general theory of democratic and institutional experimentalism; see Unger, Democracy Realized, 16 ff., 212 ff.; and Unger, The Left Alternative (2009) for further elaborations of that theory.

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“However, because the GDR wants a treaty, we are willing to accept that. Out of an understanding of partnership, because we want unity, and because we want it to be good. We have respect for the fact that the people in the GDR want to find themselves in unified Germany. This is why primarily the GDR must determine the topics of the treaty” (Wolfgang Schäuble, Der Vertrag, 125).654

Constitutionally, most authors reduce German unification to Art. 23, 2 GG: the GDR’s accession to the FRG, whereupon the GDR disappeared and the GG entered into force in the new states.655 According to this view, the Unification Treaty (UT) between the GDR and the FRG of August 31, 1990 merely took care of technicalities that were necessary to bring about German unification and the “legal unity between the two German states” as fast as possible.656 This is the standard opinion even, and in particular, when it comes to UT provisions that clearly contradicted the GG at the time, such as Art. 4 (5) UT.657 My thesis is that German unification was much more than an unconditional adoption of the GG. It was a process during which the East Germans applied legal instruments in order to preserve at least some of their revolutionary constitutional achievements by transferring them to unified 654 The original reads: “Da aber die DDR einen Vertrag wünscht, sind wir bereit, darauf einzugehen. Aus partnerschaftlichem Verständnis, weil wir die Einheit wollen und weil wir wollen, daß sie gut wird. Wir haben Respekt davor, daß sich die Menschen in der DDR in dem vereinten Deutschland wiederfinden wollen. Daher müsse in erster Linie die DDR die Themen des Vertrages bestimmen“ (internal quotation marks omitted). 655 See, for example, Klein, in: HStR VIII, § 198 Rn 14 ff.; Lerche, in: HStR VIII, § 194 Rn 55 ff.; Heckel, in: HStR VIII, § 197 Rn 4; Isensee, in: HStR IX, § 202 Rn 16 f. 656 In addition to the sources referred to in the preceding note, see Heckel, in: HStR VIII, § 197 Rn 38; Haverkate, in: HStR IX, § 209 Rn 1 ff., 6 ff., 9 ff., 21 ff.; Klein, in: HStR VIII, § 198 Rn 23 ff.; Willoweit, 425; Heitmann, in: FS f. Helmrich, 220 f. 657 See, for example, Scholz, in: Maunz/Dürig, Art. 143 GG Rn 8; Haverkate, in: HStR IX, § 209 Rn 9 ff., 21 ff.

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Germany. Such legal instruments were the UT (A) and the constitutions of the new states (B). They included revolutionary constitutional principles that were not in, and sometimes even contradicted, the GG and transferred them to unified Germany’s constitutional order. I will show that this transfer occurred not because it was necessary for German unification in the sense of a conditio sine qua non but because it was the will of an important part of the German people who had spoken in a constitutional voice and whose statement demanded respect. In what follows, I will describe the legal instruments, outline the constitutional principles they include, and show how the instruments were used to transfer the constitutional principles to unified Germany. A. The Unification Treaty (UT) After the Revolution was over and the sovereign people of the GDR had spoken their last constitutional word in the federal elections on March 18, 1990 and the communal elections on May 6, 1990, the newly established institutions in the GDR went about to preserve the people’s revolutionary achievements. Since one of these achievements was German unification, the GDR institutions were faced with a seeming contradiction. They had to make revolutionary achievements durable while realizing German unity. This could hardly be done by adopting, for example, the RTD as a new GDR Constitution. A new GDR constitution would have established a new sovereign GDR, something the people, at least since the Revolution’s second phase, obviously did not want. The task at hand required an instrument that was able to combine the preservation of something new with the accession to something existing. A contract was the perfect means to this end. It provided the parties with both, the flexibility necessary to do something that had never been done before and the reliability that only a legally binding mutual promise can give. A contract was able to bring about unification while preserving revolutionary achievements as contractual conditions of unification. My thesis that the UT did not only bring about German unification but served as an instrument to preserve revolutionary achievements by transferring them from the GDR to unified Germany is supported by two factors: first, the UT’s sheer existence and, second, its content.

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I. The UT’s existence If the goal had been German unification through the GDR’s accession to the FRG and an unconditional adoption of the GG, a unification treaty would not have been necessary. Based on Art. 23, 2 GG, a one-sided declaration by the GDR would have sufficed.658 All technicalities, such as entering the GG and all FRG laws into force in the new states, could have been achieved through unified Germany’s legislature. That is what had happened in 1956, when the Saarland had acceded to the FRG through a one-sided declaration based on Art. 23, 2 GG.659 Peter Quint writes that western conservative majorities did prefer this way of German unification because it would have further increased their political influence upon unification.660 When the UT was signed on August 31, 1990, the GDR’s VK had already declared the GDR’s accession to the FRG on August 23, 1990.661 Since this declaration was one-sided and unconditional,662 a simple federal law handling the “unification-induced” details would have sufficed. That the GDR and the FRG, nonetheless, decided to enter into a treaty to bring about German unity implies that unification must have been more than the GDR’s accession to the FRG and the entering into force of the GG and other FRG law in the new states. The newly legitimized GDR institutions wanted the treaty as an instrument to implement their popular mandate: preserving the people’s revolutionary achievements by transferring them to unified Germany. This is accounted for by Wolfgang Schäuble, the FRG’s Minister of the Interior (Innenminister) at the time and the FRG’s chief negotiator of the UT.663 Schäuble writes that it was de Maiziere who insisted on the UT as a “necessary condition” for the GDR’s accession to the FRG and who wanted the treaty to specify the conditions under which the accession would take place.664 According to Schäuble, de Maiziere not only wanted to secure

658 See v. Mangold/Klein, Bd. I, 2. Aufl., 654; Badura, in: HStR VIII, § 189 Rn 1; Lerche, in: HStR VIII, § 194 Rn 27, 32. 659 See v. Mangold/Klein, Bd. I, 2. Aufl., 654. 660 See Quint, The Imperfect Union, 103. 661 Badura, in: HStR VIII, § 189 Rn 15; Lerche, in: HStR VIII, § 194 Rn 40 f.; Willoweit, 425. 662 Badura, in: HStR VIII, § 189 Rn 1, 2, 21; Lerche, in: HStR VIII, § 194 Rn 27. 663 Schäuble has written a very informative book on “his” negotiations over German unification: Schäuble, Der Vertrag (1991). 664 Schäuble, Der Vertrag, 37, 38; see also Neubert, 410 ff.

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“the rights and claims of his GDR citizens in a unified Germany through binding provisions”;665 through the UT de Maiziere also contributed significantly to the 1989 Revolution’s “… continuation into German unity ….”, as Schäuble puts it.666 The UT was de Maiziere’s legal instrument to achieve the Revolution’s continuation into German unity by transferring to unified Germany as many revolutionary achievements as possible. Possibly even stronger evidence for the UT’s function as a legal instrument for transferring revolutionary achievements to unified Germany is the FRG’s willingness to accept the treaty.667 Most authors argue that the FRG’s willingness to accept the UT was based on the fact that the GDR and the Soviet Union had made it a conditio sine qua non for unification.668 My thesis is that the FRG was willing to accept the UT because the West German institutions had recognized and decided to respect that an important part of the German people had spoken in a constitutional voice that was binding not only on GDR institutions but also on FRG institutions.669 This respect of FRG institutions for the East Germans’ constitutional will had occurred before, when Helmut Kohl had listened to the East Germans in Dresden and had changed the course of his policy in order to actively pursue German unification.670 After the East Germans, in the March 18, 1990 elections, had decided for fast unification and de Maiziere had approached Kohl to make it happen, the FRG government, again, changed its mind and was willing to accept a treaty where it had not seen the need for a treaty before. Originally, the FRG government had been reluctant to make any constitutional concessions to the East Germans. It held the GG to be a superior constitution, which had to be protected against distortions by eastern influence. Western conservatives were convinced that the GG was the best the East Germans could hope for and was actually what the 1989 Revolution

665 Schäuble, Der Vertrag, 14. 666 Ibid., 35 (my italics); the original reads: “De Maiziere hat sich hohe Verdienste um das Gelingen der unblutigen Revolution in der DDR und um ihre Weiterführung in die Einheit Deutschlands in Frieden und Freiheit erworben.“ 667 See Quint, The Imperfect Union, 103. 668 See BVerfGE 82, 316, juris-version, rec. 11; BVerfGE 84, 90, juris-version, rec. 108, 118. 669 Lerche agrees that the FRG agreed to the UT out of respect for the East Germans’ revolutionary achievements, see Lerche, in: HStR VIII, § 194, Rn 28. 670 See supra, 115 f.

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had been all about.671 Moreover, from a purely contractual point of view, the GDR was not in a position to insist on any conditions for unification. Neither was the FRG in a position to be forced to accept any such conditions. Schäuble writes that, based on their constitutional obligation to work towards German unification, the FRG’s institutions had full discretion over whether or not to accept the GDR’s wishes to amend the GG.672 He argues that there was a “typical situation of negotiation and balance” that suggested putting unification into the form of a treaty.673 However, one only needs to look at the economic pressure weighing on the GDR at the time in order to see that the GDR’s and the FRG’s situation prior to unification was anything but a “typical situation of negotiation and balance”.674 The GDR was headed towards economic breakdown and the FRG offered what was considered the only way out: fast unification. Moreover, the East Germans had already voted for fast unification in the March 18, 1990 elections. In this situation the GDR government had hardly any “bargaining” or negotiating power. This view is supported by Schäuble’s report that a panicking de Maiziere came to see Chancellor Kohl at his vacation resort on the Wolfgangsee to tell him that he was haunted by the fear that his country was headed towards economic breakdown and general chaos.675 On this occasion, according to Schäuble, it was de Maiziere, not Kohl, who proposed the GDR’s accession to the FRG based on Art. 23, 2 GG as early as October 14, 1990.676 De Maiziere confirms Schäuble’s account writing that, in the spring of 1990, the GDR was all but bankrupt and unable to pay the upcoming salaries for teachers, doctors, nurses, and the civil service employees.677 Similar objections may be raised with respect to the Soviet Union’s position.678 Moreover, there was Gorbachev’s declaration of February

671 672 673 674 675 676 677 678

See Scholz, in: FS für Peter Lerche, 66; see also supra, 93 f. and infra, 158 f. See Schäuble, in: Guggenberger/Stein (Hrsg.), 289. Ibid. See Quint, The Imperfect Union, 104, who writes that “the parties certainly did not meet on a basis of equality” and emphasizes a “clear political disparity”. See Schäuble, Der Vertrag, 158. See ibid., 158. See de Maiziere, Die deutsche Einheit, 9. For an overview of the controversy with respect to the Soviet Union’s position on German unification, see BVerfGE 94, 12, juris-version, rec. 7 ff., 94 ff.

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1990 that the Germans must determine the conditions of their unification themselves.679 Against this background, I hold the “contractual” explanations for the FRG’s willingness to accept the UT to be spurious at best. Moreover, these explanations give up too quickly on the possibility of a constitutional explanation that accounts for the meaning of the 1989 Revolution as an act of political freedom by the East Germans as an important part of the entire German people. That the FRG’s willingness to accept the UT must be perceived of as a sign of respect for the revolutionary East Germans’ constitutional will is already reflected in the UT’s preamble (Eingangsformel).680 The preamble says that the FRG and the GDR have agreed to enter into the UT “… in grateful respect for those who have helped freedom to break through by peaceful means ….”681 The same conclusion is implied by what important FRG institutions as well as Schäuble and de Maiziere have said about the FRG’s motivation to enter into the UT. Both the FRG’s federal parliament (Bundestag) and federal government (Bundesregierung) have defended the FRG’s decision to enter into the UT with the argument that the UT “is considerate of the selfunderstanding of the people of the GDR and the respect for them as a partner in the process of re-unification”.682 The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has stated that the FRG government had to take seriously the will of the first freely elected VK and its government if it wanted the East Germans to accept German unification as a result of “their self-determination”.683 To ignore the East Germans’ will would have contradicted “the respect that the Federal Republic owed to the Germans in the acceding territory … and could have seriously endangered an orderly process of unification.”684 Schäuble, as early as July 6, 1990, had made it very clear that for the GDR’s accession to the FRG based on Art. 23, 2 GG a treaty was not necessary and a one-sided declara679 See Badura, in: HStR VIII, § 189 Rn 4. 680 The UT is introduced by an “Eingangsformel” (introductory formula), which is formulated like the preamble of a constitution. 681 UT, Eingangsformel (my italics); the original reads: “… in dankbarem Respekt vor denen, die auf friedliche Weise der Feiheit zum Durchbruch verholfen haben ….” 682 See BVerfGE 82, 316, juris-version, rec. 5. 683 See BVerfGE 94, 12, juris-version, rec. 85. 684 Ibid.

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tion by the GDR would suffice.685 Based on this statement, however, he emphasized that it was the FRG’s respect for the revolutionary East Germans’ constitutional will that convinced the FRG to enter into a treaty nonetheless: However, because the GDR wants a treaty, we are willing to accept that. Out of an understanding of partnership, because we want unity, and because we want it to be good. We have respect for the fact that the people of the GDR want to find themselves in unified Germany. This is why primarily the GDR must determine the topics of the treaty.686

Schäuble points out that both sides were partners with a common goal: German unity.687 He understood his role as having to represent the GDR’s interests equally to the FRG’s interests.688 Schäuble’s account is confirmed by de Maiziere, who writes that the negotiations over the UT changed the agreement more in favor of the GDR, even though the GDR’s economic situation was deteriorating, which increased the pressure upon the GDR to push for fast unification.689 It must therefore be concluded that the UT manifests the FRG’s respect for the constitutional will of the revolutionary East Germans instead of being a condition sine qua non of German unification. A final argument in support of my thesis that the UT’s mere existence speaks for its function to preserve and transfer revolutionary achievements to unified Germany is based on the fact that a country agreeing to a public international law treaty in which it obliges itself to amend its constitution is a “unique act” in constitutional history.690 Equally unique is that, even though the UT was a public international law treaty, the FRG government concluding it did not act based on its foreign affairs authority. As the BVerfG puts it, “the GDR belongs to Germany and cannot be considered a foreign country with respect to the FRG”.691 Moreover, one of the contractual partners, the GDR, disappeared upon unification. That means that the FRG entered into a treaty with a state that, according to the GG, did not

685 686 687 688 689 690 691

See Schäuble, Der Vertrag, 123, 125. Ibid., 125 (my italics; quotation marks omitted). See ibid., 125, 126. See ibid., 139. See de Maiziere, in: Heise et al. (Hrsg.), 97. See Klein, in: HStR VIII, § 198 Rn 25. BVerfGE 82, 316, juris-version, rec. 10.

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exist and that, factually and legally, disappeared upon the treaty’s execution. Unique indeed! How to make sense of that? My explanation is that by entering into the UT the FRG did not bind itself to the GDR as a sovereign state but to the revolutionary East Germans in their role as an important part of the entire German people. The GDR had been given up by the people in a clear vote for unification in the March 18, 1990 elections. The East Germans, however, whom the FRG had always considered Germans, had spoken in a constitutional voice, and they had spoken not for the GDR but, as de Maiziere put it in his government declaration, “as part of that one German people that shall grow together again”.692 The FRG institutions were willing to accept the UT because they felt obliged to listen to and respect what these people had said in their role as pouvoir constituant. In this respect, the UT is yet another example of Ackerman’s idea of “unconventional adaptation” in that it had not existed in legal doctrine before and had been improvised to respond to the people’s revolutionary demands.693 It functioned as an unconventional means to transfer revolutionary achievements to unified Germany, where they should be integrated into the existing constitutional order under the GG. This also explains another oddity. After the GDR had disappeared upon unification, the UT lost its validity as a treaty of public international law.694 Still, its provisions remain binding on unified Germany. Art. 45 (2) UT provides that the treaty, upon unification, remains valid as federal law. Where the UT amended the GG, the amendments remain in force as constitutional law.695 The problem, however, was that, as federal or constitutional law of unified Germany, the UT provisions could be amended by unified Germany’s legislature according to the rules of the GG.696 In order to prevent changes and preserve the East Germans’ revolutionary achievements, Art. 44 UT explicitly provides that the rights established by the UT for the GDR or the new states may, upon unification, be claimed by each of the states as “representatives of the people of the disappeared [GDR]”.697 The UT has

692 693 694 695 696 697

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Government Declaration Apr. 19, 1990, p.3. For further examples, see supra, 118 note 616. See Badura, in: HStR VIII, § 189 Rn 37. See ibid. Rn 38, 39. See ibid. Rn 40. Ibid. Rn 41, 43 with further references (my italics); Schäuble, in: Guggenberger/ Stein (Hrsg.), 292.

A. The Unification Treaty (UT)

thus established a permanent bond between the revolutionary East Germans on the one hand and unified Germany on the other, with the new states functioning as institutional representatives of the revolutionary people.698 These highly unconventional adaptations demonstrate one thing very clearly: the UT was the unconventional legal instrument to preserve the revolutionary East Germans’ constitutional achievements by transferring them to unified Germany. II. The UT’s content In addition to its existence, it is the UT’s content that shows the treaty’s purpose to preserve revolutionary achievements by transferring them to unified Germany. It starts with the achievement of the newly founded states, which Art. 1 (1), 1 UT transfers to unified Germany and preserves by declaring that, as of the entry into force of the GDR’s accession to the FRG on October 3, 1990, the new states become states of the FRG. Art. 1 (1), 2 UT explicitly declares the GDR’s Ländereinführungsgesetz (LEG), which founded the new states and determined their borders, applicable.699 The UT, moreover, reflects the revolutionary achievements of liberation, individual empowerment, and environmental protection. Liberation is preserved by enacting the GG in the new states upon unification (Art. 3 UT). The GG’s catalogue of basic rights guarantees traditional civil rights, for which the revolutionary people had fought. However, Art. 3 UT refers to more than the GG. It explicitly states that the GG only enters into force “with the amendments resulting from Art. 4” and only “insofar as this treaty does not provide otherwise”.700 What exactly does that mean? Many provisions of Art. 4 UT, indeed, focus on purely technical changes necessitated by unification. For example, Art. 4 (1) UT amends the GG’s preamble by saying that the Germans in both parts of Germany have completed Germany’s unity, so that the GG now applies to the entire German people. Art. 4 (2) UT repeals Art. 23 GG,

698 See Badura, in: HStR VIII, § 189 Rn 41, 43. 699 LEG stands for Ländereinführungsgesetz (GBl. DDR I 1990, 955), see supra, 117, 119. 700 My italics; the original in Art. 3 UT reads: “… mit den sich aus Art. 4 ergebenden Änderungen … soweit in diesem Vertrag nichts anderes bestimmt ist.”

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since after unification there was no part of Germany remaining that could accede to unified Germany. Art. 4 (6) UT amends Art. 146 GG, so that the GG will become invalid once the German people adopt a new constitution.701 Spectacular in the sense of transferring revolutionary achievements to unified Germany, however, is Art. 4 (5) UT. It provides for the amendment of the GG by adding, inter alia, a new Art. 143 I GG. According to Art. 143 I GG, law in the new states may even violate the GG for a limited period of time (until December 31, 1992) “insofar and as long as a complete adjustment [of the law in the new states] to the order under the GG cannot be achieved due to differing conditions.” The only requirement that deviating law in the new states needed to fulfill was that it must not violate core principles of the basic rights as well as the fundamental principles of federalism, human dignity, democracy, social justice, and the rule of law according to Art. 79 III GG.702 The most prominent application of the new Art. 143 I GG was the GDR’s law on abortion. It is a paradigm example of the UT’s function of transferring even those revolutionary achievements to unified Germany that clearly violated the GG at the time. It is also a paradigm example of the UT as a means to unconventionally adapt the GG to the demands of the revolutionary East Germans.703 A woman’s right to abortion had been an important element of the East Germans’ revolutionary agenda and part of the principle of individual empowerment.704 It was a revolutionary achievement that the East Germans as well as the GDR institutions were determined to preserve.705 The problem was that under the GG as interpreted by the BVerfG in its first abortion decision of 1975 the GDR’s time-phase model, which gave the woman a right to abortion during the first twelve weeks of her pregnancy, was unconstitutional because it did not sufficiently protect the unborn child.706 Despite this unconstitutional-

701 For an overview of the huge controversy over this provision, which I hold to be a truism, see Klein, in: HStR VIII, § 198 Rn 45 ff. 702 See Art. 4 (5) (1) last sentence UT. 703 See for this and the following Klein, in: HStR VIII, § 198 Rn 38 with further references; Brunner, in: HStR IX, § 210 Rn 9 with further references; Scholz, in: Maunz/Dürig, Art. 143 GG Rn 11 f. 704 See supra, 83, 89, 111 f. 705 Ibid. 706 See BVerfG, Urteil v. 25.02.1975, 1 BvF 1-6/74, NJW 1975, 573 ff.; infra, 203; Brunner, in: HStR IX, § 210 Rn 9 with further references.

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ity, the new Art. 143 I GG allowed the GDR’s abortion law to remain in force in the new states upon unification until December 31, 1992. But that’s not all. Even though, according to the dominant opinion, German unification was about entering into force the FRG’s law in the new states as fast as possible, Art. 31 (4) UT obliged unified Germany’s legislature to come up with a new, a “better”, solution to the problem of abortion than was in force in both the GDR and the FRG at the time. Art. 31 (4) states that [i]t is the task of unified Germany’s legislature, by December 31, 1992 at the latest, to adopt a law that better provides for the protection of unborn life and for the support of pregnant women in finding a solution to their conflict in ways compatible with the constitution, particularly through legally guaranteed claims for women, particularly to counseling and social help, than is the case in both parts of Germany at the moment.

Herewith, the FRG admitted that its own abortion law needed improvement. And Art. 31 (4) UT did not stop there either. Its last sentence states something that was in clear violation not only of the GG as interpreted by the BVerfG at the time but of the new Art. 143 I GG as well.707 It says that if unified Germany’s legislature is unable to adopt a new abortion law by December 31, 1992, the GDR abortion law remains in force in the new states.708 That means that, even though the new Art. 143 I GG declared that GDR law in violation of the GG could only remain in force until December 31, 1992, Art. 31 (4) UT nonetheless provided that the GDR’s unconstitutional abortion law could remain in force in the new states even beyond that date.709 In fact, the GDR’s time-phase model remained in force in the new states until June 15, 1993, because the BVerfG, in a verdict of May 28, 1993, introduced its own abortion model and enacted it all over unified Germany as of June 16, 1993.710 To fully understand the truly revolutionary character of these UT provisions on abortion, it must be noted that the new Art. 143 I GG and the last sentence of Art. 31 (4) UT not only violated the GG as interpreted by the 707 See Scholz, in: Maunz/Dürig, Art. 143 GG Rn 12. 708 The original reads: “Kommt eine Regelung in der in Satz 1 genannten Frist nicht zustande, gilt das materielle Recht in dem in Artikel 3 genannten Gebiet [i.e. in the new states] weiter.“ 709 See Brunner, in: HStR IX, § 210 Rn 9 with further references; Scholz, in: Maunz/ Dürig, Art. 143 GG Rn 12. 710 See Klein, in: HStR VIII, § 198 Rn 38; BVerfGE 88, 203. I will look at this in detail in Chapter IV, see infra, 202 ff., 204 ff.

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BVerfG at the time; they, arguably, violated the GG’s most important and fundamental principle: human dignity (Art. 1 I GG).711 The BVerfG, in its first Abortion Decision (1975), had declared that a time-phase model violates, among others, human dignity as protected by Art. 1 I GG.712 The application of the GDR’s time-phase model in the new states upon unification may thus be considered a clear violation of Art. 1 I GG. It thereby also violated the so-called eternity clause of Art. 79 III GG, another fundamental provision of the GG. It, finally, violated the new Art. 143 I GG, which provided that GDR law that remained in force after unification must not violate the principles included in Art. 79 III GG. These are many violations, indeed, for a treaty that supposedly aimed at making western law applicable in the east as fast as possible. Whatever one thinks of these truly unconventional adaptations of the GG by the UT, they demonstrate one thing very clearly: unification was anything but an unconditional adoption of the old GG by the new states. The constitutional changes brought about by the UT were anything but “mere technicalities” to apply western law in the east as fast as possible. To the contrary, abortion is a paradigm example of how the FRG went out of its way to allow for the transfer to unified Germany of the East Germans’ revolutionary achievements, the old FRG’s existing constitutional law notwithstanding.713 Another example of the UT’s role as an unconventional means to transfer revolutionary achievements to unified Germany is the new Art. 143 III GG, which Art. 4 (5) UT added to the GG. It preserves the validity of the so-called Bodenreform-expropriations (Bodenreform). Art. 143 III GG states that Art. 41 UT (which refers to the Joint Declaration of June 15, 1990 by the GDR and FRG governments confirming the Bodenreform) shall remain valid even in so far as it provides for the irreversibility of interferences with property in the territory of the former GDR. This, too, had been an important goal of the revolutionary East Germans, who

711 See for this and the following Brunner, in: HStR IX, § 210 Rn 9 with further references; Stern, DtZ 1990, 291 with further references; Klein, in: HStR VIII, § 198 Rn 38. 712 See BVerfG, NJW 1975, 573, 575 (“das sich entwickelnde Leben nimmt auch an dem Schutz teil, den Art. 1 I GG der Menschenwürde gewährt“); see also Stern, DtZ 1990, 291 note 11. 713 For the integration of the revolutionary achievement regarding abortion into unified Germany’s constitutional order, see infra, 213 ff.

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wanted to protect their property against former owners, who were mostly located in the FRG and who were intent on using unification to get back their property.714 Under the old GG, i.e. the GG prior to the UT, the Bodenreform’s confirmation was a limitation of the “basic principle of the constitutional guarantee of property” according to Art. 14 I GG. It also limited the “fundamental constitutional decision of Art. 14 III GG”,715 i.e. the principle of “no expropriation without compensation”. One author writes, Art. 143 III GG has “modified Art. 14 GG with respect to the claim to return [illegally taken property]”.716 Even if one follows the BVerfG in holding these modifications of the GG constitutional,717 Art. 143 III GG is another example of the modification of the GG through the East Germans’ revolutionary achievements by way of the UT. This becomes particularly visible against the background of the fact that West German constitutional scholars consider the establishment of a property order according to the GG a center piece of the constitutional change that the introduction of the GG in the new states was supposed to bring about.718 Yet another important example is Art. 31 UT, which gives unified Germany’s legislature several assignments aiming at preserving some of the most important revolutionary achievements. I have already mentioned the assignment to improve the legal treatment of abortion stated in Art. 31 (4) UT. Another assignment is related to the establishment of real-social as opposed to only formal-legal equality for women. Art. 31 (1) UT states that it is the legislature’s task to “further develop legislation on equal rights of men and women”. Acknowledging unequal legal and institutional starting positions for fathers and mothers on the job market, Art. 31 (2) UT says that unified Germany’s legislature must shape the law with a view to making family and career compatible. According to Art. 31 (3) UT, unified Germany’s federal government is obliged to participate in financing day care in the former GDR for a transitional period until June

714 715 716 717

See infra, 171 ff. See Scholz, in: Maunz/Dürig, Art. 143 GG Rn 22, 25 f. See Ossenbühl, in: HStR IX, § 212 Rn 54. See BVerfG, DVBl 1991, 575 ff.; Scholz, in: Maunz/Dürig, Art. 143 GG Rn 27 ff.; Ossenbühl, in: HStR IX, § 212 Rn 54 ff. 718 See Ossenbühl, in: HStR IX, § 212 Rn 2, 3.

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30, 1991. All these provisions reflect the revolutionary principle of realsocial equality for women, particularly with respect to the job market.719 Transferring the revolutionary principle of environmental protection to unified Germany, Art. 34 UT explicitly states that the conservation of nature is the legislature’s task. More vague but nonetheless in a visible attempt to preserve and transfer revolutionary achievements to unified Germany, Art. 5 UT finally states “recommendations” by the GDR and the FRG to unified Germany’s legislature to, within a timeframe of two years, “deal with questions, raised in the context of German unification, of amending and complementing the GG”, in particular “with considerations regarding the introduction of state goals into the GG”. In light of the East Germans’ revolutionary constitutional agenda, this is a clear invitation of unified Germany’s legislature to deal with the revolutionary East Germans’ will to entrench in unified Germany’s constitution social rights, such as rights to labor, appropriate housing, and social security, as well as environmental protection.720 From this it must be concluded that the UT served as a highly unconventional means to transfer to unified Germany the revolutionary achievements new states, liberation, individual empowerment, and environmental protection. B. State Constitutions Another way of preserving and transferring to unified Germany revolutionary achievements was the adoption of state constitutions for the newly founded states.721

719 The UT’s Aide Memoire states that the goal is to further develop equal rights of the sexes in “all areas of society and life“ (“in allen Gesellschafts- und Lebensbereichen”), see Aide Memoire, On Art. 31 indent 1, in: Fischer/Künzel (Hrsg.), Bd. II, 223 ff, 240. 720 Heitmann denies this and asserts that Art. 5 was only added to the UT because the western SPD and Die Grünen had insisted on it in pursuance of their own political agenda and both parties’ votes were necessary for the 2/3 majority to adopt the UT, see Heitmann, in: FS f. Helmrich, 220, 221. This view contradicts everything Schäuble and de Maiziere have said about the UT. 721 For an overview of the new state constitutions, see, for example, v. Mangoldt, Die Verfassungen der neuen Bundesländer (1993); Starck, Die Verfassungen der neuen deutschen Länder, Eine vergleichende Untersuchung (1994).

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The new state constitutions’ suitability for this purpose appears limited at first because their applicability is limited to the new states. As a matter of principle, federal law, including federal constitutional law, trumps state law (Art. 31 GG). However, as long as state constitutions grant basic rights that don’t contradict the GG, they remain in force (Art. 142 GG).722 In practice, that means that state constitutions may grant either more or fewer basic rights than the GG. If they grant more rights, they generally do not contradict the GG. If they grant fewer rights, the citizens are still protected by the GG, which is also binding on state institutions.723 State constitutions were nonetheless appropriate instruments for the preservation and transfer of revolutionary achievements for three reasons: (i) the new state constitutions had the people’s support724 and clearly reflect the people’s revolutionary achievements; (ii) the new state constitutions set valid constitutional law in unified Germany’s new states and thus in an important part of unified Germany; and (iii) the state constitutions’ content may have an impact on federal constitutional law, for example, when the BVerfG considers it as a “systematic” argument in its interpretation of the GG.725 East Germans have always felt strong regional loyalties, which survived the states’ effective abolition by the SED regime in 1952.726 The 1989 Revolution reactivated these loyalties, and draft constitutions for the new

722 See Pieroth/Schlink, Rn 64. 723 See ibid. 724 The constitutions of Brandenburg, Mecklenburg-West Pomerania, and Thuringia were adopted by plebiscites, see Quint, The Imperfect Union, 83 88, 89; Starck, in: HStR IX, § 208 Rn 17; the constitutions of Saxony and Saxony-Anhalt by a 2/3 majority in the respective state parliament after extensive public hearings and discussions, see Quint, The Imperfect Union, 79 ff.; Starck, in: HStR IX, § 208 Rn 17. Bremers writes that the new state constitutions give a clear picture of what the people in the new states thought was important in terms of constitutional politics, see Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 160. Heitmann, on the other hand, implies that the new state constitutions’ content does not so much reflect the will of the people of the new states than the view of western advisers in the process of drafting the new constitutions, see Heitmann, in: FS f. Helmrich, 226. 725 See Pieroth/Schlink, Rn 62, 63 referring to BVerfGE 2, 237, 262, where the BVerfG referred to the provisions of eight state constitutions to justify the conclusion that the legislature itself is bound by the principle of equality before the law. 726 See Quint, The Imperfect Union, 74.

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states appeared as early as March 1990.727 These drafts already saw the new states as parts of a unified Germany, not as parts of a new GDR.728 The new state parliaments, elected on October 14, 1990 (i.e. shortly after German unification on October 3, 1990), played the role of constituent state assemblies (verfassungsgebende Landesversammlungen). Drafting and adopting new state constitutions was one of their most important tasks. The debates surrounding the drafting processes clearly reflect the constitutions’ meaning as instruments for the transfer of revolutionary achievements to an already existing West German constitutional order. These debates were highly controversial because “a specific East German constitutional consciousness confronted more traditional western views”.729 Controversies mostly centered on provisions that were not in the GG but had been in the RTD.730 People in the new states wanted “a document that could reflect the history and experience of the 1989 Revolution”, while conservative western politicians approached the drafting “principally as a ‘legal-technical’ problem of conformity with the [West German] Basic Law [GG].”731 Still, and even though four out of five states were governed by the CDU or CDU-led coalitions, all new state constitutions contain provisions on individual empowerment and environmental protection that display clear parallels to both the Social Charter and the RTD. This is also true for the new constitution of the city state of Berlin.732 Even though Berlin is not considered a “new” state because it resulted from the unification of East and West Berlin, its new constitution is a paradigmatic example of the use of state constitutions to transfer revolutionary achievements to the existing West German constitutional order.

727 The first draft constitutions were presented in Saxony in late March 1990; in Saxony-Anhalt on June 29, 1990; and in Thuringia on Aug. 30, 1990, see Starck, in: HStR IX, § 208 Rn 3; Würtenberger, in: HStR VIII, § 187 Rn 37. 728 See Starck, in: HStR IX, § 208 Rn 3. 729 Quint, The Imperfect Union, 76. 730 Ibid., 77. 731 Ibid., 86, 87. 732 Berlin adopted a new constitution in June 1995, implementing a constitutional provision of the amended West Berlin constitution according to which a revised constitution of Berlin based on the West Berlin constitutions of 1948 and 1950 as well as on the East Berlin constitution of July 1990 would be adopted during the first parliamentary term of unified Berlin’s legislature, see Constitution Berlin (1990), Art. 88 (2); and Quint, The Imperfect Union, 95, 96.

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The result of the transfer was “a heavily revised constitution for the unified city state.”733 All new state constitutions reflect the revolutionary achievement of liberation by basically taking over the GG’s traditional civil rights, such as the freedoms of speech, of assembly, of profession, and of religion.734 Mecklenburg-West Pomerania’s constitution refers to the basic rights as listed in the GG.735 All other new states insisted on having their own lists of basic rights in order to explicitly manifest the revolutionary achievement of liberation.736 The principle of individual empowerment is reflected in significant lists of social rights or state goals contained in all new state constitutions.737 For example, Art. 7 of Saxony’s constitution states that “[t]he state recognizes as a state goal the right of every human being to a life in dignity, in particular rights to labor, appropriate housing, appropriate means of subsistence, social security, and education.”738 Another constitution states, more specifically, that the state is obliged, within the framework of its capacities, to see to the realization of the right to labor,739 to appropriate housing,740 and to social security.741 The state is obliged to provide public education742 that aims at developing a free personality which is tolerant, capable of independent thinking and acting, and of taking on responsibility for others.743 As regards housing, one constitution specifies that a tenant may only be evicted from an apartment if a substitute apartment is avail-

733 Quint, 47 Am. J. Comp. L., 303, 311 (1999). 734 See Constitutions of Saxony, Art. 14-38; Brandenburg, Art. 7-24; Saxony-Anhalt, Art. 4-23; and Thuringia, Art. 1-16, 34, 35, 39. 735 Constitution of Mecklenburg-West Pomerania, Art. 5 III. 736 See Starck, in: HStR IX, § 208 Rn 56 f. 737 Social rights in the sense of individual claims against the state; state goals in the sense of objective, judicially non-enforceable state obligations to pursue specific ends. 738 Constitution of Saxony, Art. 7 I (my italics); similarly Mecklenburg-West Pomerania, Art, 17 I and II; and Berlin, Art. 20 I. 739 See Constitutions of Brandenburg, Art. 48 I; Saxony-Anhalt, Art. 39 I; and Thuringia, Art. 36. 740 See Constitutions of Brandenburg, Art. 47 I; Saxony-Anhalt, Art. 40; Mecklenburg-West Pomerania, Art. 17 II; and Thuringia, Art. 15. 741 See Constitution of Brandenburg, Art. 45 I. 742 See Constitution of Brandenburg, Art. 29 II. 743 See Constitutions of Saxony-Anhalt, Art. 27 I; Brandenburg, Art. 28; and Saxony, Art. 101 I.

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able.744 With respect to labor, another constitution says that the state must work towards the establishment of more humane labor conditions and the promotion of individual self-fulfillment.745 As part and parcel of the constitutional concept of individual empowerment, all state constitutions provide for the establishment of real-social instead of only formal-legal equality for women. Women must not only have the same rights as men but also must have equal opportunity as a matter of social reality. It is the state’s obligation to work towards that end by practicing affirmative action. Some state constitutions express this obligation in moderate tones, such as “[t]he advancement of the legal and factual equal treatment of women and men is the state’s task”;746 others are more progressive and detailed, stating that “[m]en and women have equal rights. The state is obliged to make sure, through effective measures, that women and men are treated equally in the fields of occupation, in public life, in education and training, in the family, as well as in the field of social security.”747 One provision entitles men and women to equal compensation for equal work.748 As part of the effort to further real equality for women, the state is obliged to promote day care for children749 and the possibility to combine childcare with a professional career.750 The only state constitution that explicitly refers to abortion is the constitution of Brandenburg. In Art. 8 II it provides that the unborn life must be protected, particularly through comprehensive information, free consultation, and social help. This implies that the constitution does not consider criminal punishment of abortions necessary for an effective protection of the unborn life, a view that contradicted West German constitutional law as interpreted by the Federal Constitutional Court until 1993. An earlier draft of the Brandenburg Constitution had explicitly obliged the state to work towards the decriminalization of abortions performed during the first twelve weeks of

744 745 746 747

See Constitution of Brandenburg, Art. 47 II. See Constitution of Saxony-Anhalt, Art. 39 II. Constitution of Saxony, Art. 8. Constitution of Brandenburg, Art. 12 III; for similar provisions, see the Constitutions of Saxony-Anhalt, Art. 34; Mecklenburg-West Pomerania, Art. 13; Thuringia, Art. 2 II; and Berlin Art. 10 III. 748 See Constitution of Brandenburg, Art. 48 III. 749 See Constitution of Thuringia, Art. 19 III. 750 See Constitution of Berlin, Art. 12 VII.

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the pregnancy. This provision, however, had to be given up by the SPD in a compromise with the CDU.751 Many new state constitutions do not comply with West German constitutional doctrine, which strictly differentiates between judicially enforceable individual rights on the one hand and purely objective, judicially nonenforceable state goals on the other. This has been met with sheer indignation by West German doctrinalists.752 In fact, however, it is yet another proof of the East Germans’ attempt to use state constitutions to transfer revolutionary achievements to the existing West German constitutional order. As reflected in the Social Charter and the RTD, the revolutionary East Germans wanted social rights in their most effective form as judicially enforceable individual rights.753 Confronted with the old FRG’s constitutional concept that does not know social rights and considers the social-state clause (Art. 20 I, 28 I GG) an objective state-goal provision,754 new state constitutions sometimes simply combine the two concepts of individual rights and state goals. For example, Art. 7 of the Saxon Constitution states that “[t]he state recognizes as a state goal the right of every human being to a life in dignity ….”755 That an “individual right” may be recognized as a “state goal” is unthinkable for West German doctrinalists for whom something is either a state goal or an individual right.756 Viewed in the light of revolutionary reform, however, it may be yet another attempt of unconventional adaptation in order to transfer the revolutionary achievement of social rights to an existing constitutional order that only knows social state goals. Where the latter strictly differentiates between individual rights and state goals, an “individual right as a state goal” could be an attempt to combine the two concepts in order to increase the weight of social rights. In the process of weighing competing constitutional principles against each other, an “individual right as a state goal” could weigh more heavily than a pure state goal but could still be judicially nonenforceable. Viewed from this perspective, the combination of the two 751 See Quint, The Imperfect Union, 83. 752 See Starck, in: HStR IX, § 208 Rn 58 ff.; Bremers, in Fischer/Künzel (Hrsg.), Bd. I, 153 ff. 753 See supra, 83, 89. 754 See, for example, Hesse, Grundzüge Rn 208. 755 Constitution of Saxony, Art. 7 I (my italics); similarly Mecklenburg-West Pomerania, Art, 17 I and II; and Berlin, Art. 20 I. 756 See Starck, in: HStR IX, § 208 Rn 58 ff.; Bremers, in Fischer/Künzel (Hrsg.), Bd. I, 153 ff.

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concepts might be considered as enriching western traditional constitutional doctrine instead of violating or ignoring it. Finally, it is the revolutionary achievement of constitutional environmental protection that state constitutions have taken up as state goals. In addition to making environmental protection a state obligation,757 some state constitutions grant “acknowledged environmental groups” the right to participate in administrative proceedings and oblige states to give them the right to sue in environmental cases.758 Some constitutions grant an individual claim against public entities to information about environmental data concerning the individual’s living environment.759 Some provide that private property shall serve the conservation of nature.760 As regards public freedom, the new state constitutions reflect the course of the Revolution in that they give up on public freedom. Like most state constitutions in the old FRG, all new state constitutions contain plebiscitary elements,761 which, as I have argued earlier, are no means to preserve and transfer public freedom.762 C. Conclusion This chapter has demonstrated that the East Germans have used both the UT and the new state constitutions as legal instruments to preserve and transfer to unified Germany their revolutionary achievements of liberation, individual empowerment, and environmental protection. They did not consider public freedom. The fact that the UT amended the GG and called for further amendments of both the GG and other laws of the FRG in the light of revolutionary achievements clearly refutes the dominant opinion of an unconditional adoption of the FRG’s constitutional order by the new states. So do the new state constitutions, which include principles of indi-

757 See, for example, the Constitutions of Saxony, Art. 10 I; Brandenburg, Art. 39 I; Saxony-Anhalt, Art. 2 I; and Mecklenburg-West Pomerania, Art. 12. 758 See Constitutions of Saxony, Art. 10 II; Brandenburg, Art. 39 VIII. The provisions go back to Art. 33 (3) of the RTD. 759 Constitutions of Brandenburg, Art. 39 VII; Saxony-Anhalt, Art. 6 II; Saxony, Art. 34; and Thuringia, Art. 33. 760 Constitutions of Saxony-Anhalt, Art. 18 II; and Saxony, Art. 31 II. 761 See Starck, in: HStR IX, § 208 Rn 36. 762 See supra, 88 f.

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vidual empowerment and environmental protection that clearly transcend the GG. However, after being transferred to unified Germany’s constitutional order, the revolutionary achievements still needed to be integrated into that order. How this challenge was being tackled is subject of the next chapter.

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“While to many power seems to be the most real of all things, the history of man has proved it to be the most unstable of all human achievements” (Erich Fromm, The Art of Loving, 116).

Once transferred to unified Germany, the traditional and most obvious way of integrating revolutionary achievements into the existing West German constitutional order under the GG was to either amend the GG or to adopt a completely new constitution. These were the two options referred to in Art. 5 UT. Art. 5 UT “recommended” that, within two years after unification, the “legislative institutions of unified Germany” deal with questions of amending or complementing the GG that were raised “in the context of unification”. Art. 5 UT listed particular questions the legislature was encouraged to deal with, such as the question of adding state-goal provisions to the GG and the question of adopting a new constitution through a plebiscite.763 Unified Germany’s federal legislature, however, soon turned out to be reluctant to touch the GG at all. Based on the requirement of a 2/3 majority in both chambers of the federal legislature (Bundestag and Bundesrat) for amending the GG, the conservative CDU/CSU managed to prevent many of the changes referred to in the UT. However, as I will show, where the legislature turned out to be unable to integrate revolutionary achievements into the existing West German constitutional order, the BVerfG stepped in and took over the integrative function in acts of constitutional interpretation that show characteristics of Ackerman’s “intergenerational synthesis” (IS). In what follows, I will first describe the legislature’s mostly futile attempts to integrate revolutionary achievements into unified Germany’s constitutional order (A) in order to then show where and how the BVerfG has taken over the integrative task (B).

763 See third and fourth indent of Art. 5 UT.

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A. The legislature as an integrative institution The UT had initiated a process of amending the GG in order to integrate transferred revolutionary achievements. This process was successful in cases in which amendments had already been agreed upon in the UT, such as the new Art. 143 GG, which Art. 4 (5) UT had added to the GG and which I have described in the preceding chapter.764 Things became much more difficult where, as in Art. 5 UT, the decision on how to integrate revolutionary achievements had been left to unified Germany’s legislature. Most authors argue that the legislature was completely free in deciding whether or not to follow Art. 5 UT’s “recommendations” to deal with questions of amending or complementing the GG.765 Moreover, they argue that any change of the existing constitutional order, including the decision to adopt a new constitution through a plebiscite, had to be made in compliance with the GG and thus required a 2/3 majority in both the Bundestag and the Bundesrat.766 Facing a strong conservative CDU/CSU in the Bundestag, the chances for constitutional change through the legislature were thus low. In the following, I will describe the “Board of Trustees for a democratically constituted Federation of German States” (Kuratorium), the “Commission Constitutional Reform of the Bundesrat” (Bundesrat’s Commission), and the Joint Constitutional Commission of the Bundestag and Bundesrat (Gemeinsame Verfassungskommission, GVK) as mostly futile attempts by unified Germany’s legislature to integrate transferred revolutionary achievements into the existing constitutional order under the GG. I will then present the adoption of constitutional environmental protection as a successful exception. I. The Kuratorium The most serious attempt to integrate revolutionary achievements into unified Germany’s constitutional order was undertaken by an institution with

764 See supra, 138 ff.; other examples are the amendments specifically agreed upon in Art. 4 (1) – (4) and (6) UT. 765 See Stern, in: Stern/Schmidt-Bleibtreu (Hrsg.), Einigungsvertrag, 47 with further references. 766 See ibid., 47 ff. with further references.

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the impossible name of “Kuratorium für einen demokratisch verfaßten Bund deutscher Länder” (“Board of Trustees for a democratically constituted Federation of German States”) (Kuratorium).767 The Kuratorium was an independent citizens’ initiative founded in Berlin on June 16, 1990 and consisting of 200 members with different backgrounds from East and West Germany.768 Its foundation had been initiated by the CRT working group “New Constitution of the GDR”.769 The Kuratorium considered itself the first “all-German citizens’ initiative”.770 Participation in the Kuratorium’s work was open to everyone (including parties and associations), but membership was limited to individuals.771 The Kuratorium wanted to establish a Constitutional Council (Verfassungsrat) consisting of parliamentarians, scientists, and ordinary citizens, equally representing women and men. The Council’s task was to draft a new constitution for unified Germany on which, after extensive public debate, the German people should decide through a plebiscite.772 The Kuratorium clearly tried to take up revolutionary achievements and integrate them into unified Germany’s constitutional order. That is reflected in both the process it proposed for the development of a new constitution and the content of its Draft Constitution (Kuratorium’s Draft).773 Procedurally the Kuratorium took popular sovereignty, the central element of the 1989 Revolution, very seriously when drafting the new constitution. Emphasizing that the German people had not had a chance to vote on the GG in 1949, the Kuratorium referred to the 1989 Revolution’s positive experience with popular sovereignty and argued that unification should be taken as an opportunity to finally give the German people a chance to vote on their constitution.774 Opposed by western conservatives who were determined to confine the process of integrating revolutionary achievements to the legislature, the Kuratorium called upon the German

767 For an overview of the Kuratorium and its work, see Häfner, in: Fischer/Künzel (Hrsg.), Bd I, 53 ff.; Guggenberger/Preuß/Ullmann (Hrsg.), Eine Verfassung für Deutschland (1991). 768 See Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 36. 769 See ibid. 770 See ibid. 771 For this and the following, see Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 57. 772 See ibid., 57 f. 773 The Kuratorium’s Draft Constitution of June 29, 1991 (Kuratorium’s Draft) is reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 259 ff. 774 See Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 54.

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people to “fight” for their right to vote on a new constitution.775 The Kuratorium practiced popular sovereignty by holding several congresses during which hundreds of people cooperated on the Kuratorium’s Draft in topicoriented working groups.776 Where Kuratorium members were unable to agree on common formulations, they refrained from deciding on a formulation by majority vote and instead included differing formulations in the draft in order to encourage further public debate prior to the plebiscite.777 In addition to the procedure, the Kuratorium’s Draft’s content clearly reflects the Kuratorium’s intention to integrate revolutionary achievements into the existing constitutional order. It is characterized by the attempt to integrate into the GG elements of the RTD. Following the revolutionary constitutional agenda, the Kuratorium’s Draft makes the GG its starting point. The Draft takes up the revolutionaries’ conviction that the GG needed improvement and, in its introductory remark, explicitly refers to the RTD as a source for such improvements.778 The Kuratorium’s Draft builds on the revolutionary experience of public freedom by following the Leitbild of a “civil society of responsible citizens” (“Zivilgesellschaft mündiger Bürger”) in which all citizens shall have equal opportunity to participate in public decision making.779 It explicitly protects and promotes citizens’ movements and citizen’s initiatives that participate in the political discourse.780 It then, however, confines itself to traditional plebiscitary elements.781 The Kuratorium’s Draft includes the revolutionary principles of liberation, individual empowerment, and environmental protection. Liberation is manifested in the Draft’s list of traditional civil rights, which is expanded in response to the East Germans’ specific experiences with the SED dictatorship.782 The Draft pursues individual empowerment through social rights, such as rights to labor, social security, and housing.783 It considers

775 776 777 778 779 780 781

See ibid., 57. Ibid., 58 f. Ibid., 60. See Kuratorium’s Draft, Introductory Remark. See Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 61, 66, 67. See Art. 9 a, 21 (3) Kuratorium’s Draft. See Art. 77 (1), 82 a Kuratorium’s Draft; Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 66 f., 77 ff. 782 See Art. 1 ff. Kuratorium’s Draft; Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 61, 62 ff.; Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 40. 783 See Art. 12 a, 12 b, and 13 a Kuratorium’s Draft.

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these rights necessary in order to make democratic participation and civil rights a reality for everyone.784 The Draft aims at implementing real-social instead of only formal-legal equality of the sexes by explicitly obliging the state to realize equal participation of the sexes in all areas of society and by explicitly declaring that affirmative action in favor of women must not be considered gender-based discrimination.785 The Draft gives women the right to decide whether or not to carry a pregnancy to term and prohibits the criminal punishment of abortions unless they are undertaken against the pregnant woman’s will.786 Finally, it places “the conservation of nature” (“den Schutz der natürlichen Lebensgrundlagen”) for present and future generations as well as “nature in its own right” (“die Natur um ihrer selbst willen”) under the state’s particular protection.787 The Kuratorium’s Draft, presented to the public on June 16, 1991 in the Paulskirche in Frankfurt a.M., was met with utmost caution by unified Germany’s political establishment. The GVK’s report mentions it only once, briefly stating that it “was considered” (“sind eingeflossen”) in the elaboration of the GVK’s own proposals for GG amendments.788 Since the CDU/CSU was strictly opposed to replacing the GG, the Kuratorium’s Draft never had a chance to receiving the 2/3 majority in the legislature that was necessary to make it subject to a possible plebiscite. II. The Bundesrat’s Commission Instead, the Bundesrat (the federal legislature’s chamber representing the states)789 made an own attempt to propose amendments to the GG and decided on March 1, 1991 to establish a “Commission Constitutional Reform of the Bundesrat” (“Kommission Verfassungsreform des Bun-

784 See Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 62. 785 See Art. 3 (2) and (4) Kuratorium’s Draft; Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 69, 70. 786 See Art. 3 a Kuratorium’s Draft; Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 70, 71. 787 See Art. 20 a Kuratorium’s Draft; Häfner, in: Fischer/Künzel (Hrsg.), Bd. I, 62, 74, 75. 788 See Report of the Joint Constitutional Commission, adopted on Oct. 28, 1993, BT Drucksache 12/6000 v. 05.11.1993 (henceforth: GVK Report), reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 513 ff. (518). 789 See Art. 50 GG.

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desrates”).790 The Commision was comprised of representatives of all 16 states, two representatives per state, usually the Minister President and another member of the state government. Each state had one vote, and a 2/3 majority was required to adopt a proposal. Minority opinions were included in the final report if they were supported by at least five states. Participation thus limited to party politicians and restricted by a 2/3majority requirement, the Commission’s only proposal that may be considered a serious attempt to integrate a revolutionary achievement was a proposal to add the state goal of environmental protection to the GG (Art. 20 a GG: The natural foundations of life are under the state’s particular protection).791 Other than that, the Commission made proposals to protect states’ rights in connection with the transfer of powers to international organizations and proposed changes regarding the relationship between the federal government and state governments with respect to legislation and administration.792 No agreement could be reached on topics such as social state goals, real equality for women, or citizens’ participation in politics.793 III. The Joint Constitutional Commission (GVK) On November 28/29, 1991, the Bundestag and the Bundesrat, respectively, decided to establish a Joint Constitutional Commission (Gemeinsame Verfassungskommission, GVK) to tackle Art. 5 UT’s “recommendations”. It consisted of 32 members of the Bundestag and 32 members of the Bundesrat.794 Of the 64 members, only 11 came from the former GDR.795 The GVK emphasized that it did not only consider itself in charge of Art. 5 UT but that it wanted to more generally “examine the constitutional questions

790 For this and the following, see Fischer, in: Fischer/Künzel (Hrsg.), Bd. I, 48. 791 See Bericht der Kommission Verfassungsreform des Bundesrates of May 14, 1992, reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 420 ff. (451). 792 See Bericht der Kommission Verfassungsreform des Bundesrates of May 14, 1992, in: Fischer/Künzel (Hrsg.), Bd. II, 424 ff. 793 Ibid., 444 ff., 450 ff. 794 See Busch, in: Fischer/Künzel (Hrsg.), Bd. I, 96 ff. 795 This is pointed out by Hans-Jochen Vogel in a speech during the 209. Meeting of the Bundestag on Feb. 4, 1994, see the Stenographic Report of the meeting, reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 694 ff. (701).

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regarding the necessity to amend the GG that had come up in the political discussion”.796 The GVK was a novelty in the FRG’s constitutional history.797 As such, it is a paradigm case of an unconventional adaptation of the existing constitutional order under the GG to the necessity of integrating revolutionary achievements.798 Even though conservatives tried to depict the GVK as a means to more generally examine the necessity of constitutional reform in unified Germany, there can be no doubt that the GVK was an institutional reaction to Art. 5 UT and the specific task of integrating transferred revolutionary achievements into the existing constitutional order under the GG. The GVK’s task was to propose to the federal legislature amendments of the GG. By establishing the GVK, the legislature rejected the establishment of a Constitutional Council (Verfassungsrat) that would have consisted not only of party politicians but also of independent personalities from East and West Germany, including representatives of the GDR citizens’ movements.799 The legislature thus put the process of amending the GG firmly into the hands of the party system. In fact, it put the power to prevent any changes of the GG into the hands of two big parties, the CDU/CSU on the one hand and the SPD on the other. The requirement of a 2/3 majority in the GVK to adopt a proposal provided each of the two big parties with the power of veto.800 Moreover, the GVK could not agree

796 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 522; the original reads: “Sie [the GVK] sah es auch als ihre Aufgabe an, in der politischen Diskussion aktuell gewordene verfassungsrechtliche Fragen im Hinblick auf die Notwendigkeit einer Änderung des Grundgesetzes zu untersuchen.“ 797 See Busch, in: Fischer/Künzel (Hrsg.), Bd. I, 96; Stolpe, in: Fischer/Künzel (Hrsg.), Bd. I, 187, 189. 798 For other examples of unconventional adaptations, see supra, 118 note 616. 799 SPD and Bündnis 90/Die Grünen had proposed the establishment of a Constitutional Council composed of 120/160 members under equal representation of men and women and including personalities who were not party politicians, see GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 518. Hans-Jochen Vogel (SPD) points out that the proposal was rejected by the “conservative majority”, see GVK Report, ibid., 701. State parliaments, too, were excluded from participation, even though Art. 5 UT refers to “the legislative institutions of unified Germany”, a text that may well comprise state legislatures. The Bundesrat denied state parliaments participation in both the GVK and the Bundesrat’s own constitutional commission, see GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 524. 800 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 521.

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on proposing a plebiscite on either the GVK’s proposals or on a “new” GG.801 The party system thus successfully blocked out any citizens’ participation in the process of integrating revolutionary achievements into the existing constitutional order under the GG.802 The GVK’s elitist and exclusionary attitude is further reflected in its statement that “problems of the constitution and constitutional reform are ultimately questions of political power”.803 This attitude ignores a core lesson of the 1989 Revolution: the perishability of the party system’s political power and the fact that politics and the constitution are eventually about the people’s decision of how they want to live together. It ignores the insight that “[w]hile to many power seems to be the most real of all things, the history of man has proved it to be the most unstable of all human achievements.”804 One of the GVK’s two chairmen,805 Rupert Scholz, constitutional law professor, CDU member, and member of the Bundestag, succinctly summarized the conservatives’ attitude at the GVK’s foundational meeting on January 16, 1992 as follows: the goal of the 1989 Revolution had been to bring the basic values of the GG to the new states; with unification the GG had become the constitution of unified Germany; Art. 5 UT only stipulated to discuss generally necessary reforms and modernizations of the GG.806Scholz did not even mention revolutionary topics, such as social rights or state goals, real gender equality, environmental protection, and 801 See ibid., 623. 802 The GVK decided at its 4th meeting to open its meetings to the public, see GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 521. Moreover, it received 800,000 or so petitions by citizens, institutions, and organizations outside the GVK, see Preface of the GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 516. Still, that does not mean that citizens could participate in the work of the GVK. A participation of citizens would at least have required a reaction by the GVK to the input from outside, which is neither visible nor reported. Real participation in the work of the GVK was limited to members of the Bundestag and Bundesrat. Even Isensee concludes: “The people did not share in the work of the Common Constitutional Commission [GVK]”, Isensee, NJW 1993, 2583. 803 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 526. This is a referral to the old statement by Ferdinand Lasalle according to which “constitutional questions are power questions”. It goes back to Lorenz von Stein’s conviction that the only thing a written constitution can do is reflect the real power structure in a country, see Miller, in: Böckenförde/Jekewitz/Ramm (Hrsg.), 35; Mengelberg, 14. 804 Fromm, 116. 805 The other chairman was Henning Vorscherau (SPD). 806 See the protocol of the meeting, reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 478 f.; see also Heitmann, in: FS f. Helmrich, 222, 223.

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citizens’ participation in government. Conservatives were strongly opposed to amending the GG and emphasized the unconditional adoption of the GG by the new states.807 GVK members who highlighted the revolutionary East Germans’ role in bringing about German unification and called for due consideration of their experiences and political demands in devising a new constitution for unified Germany808 were unable to summon a 2/3 majority. A GVK member representing the FDP concluded that there was just no 2/3 majority in the GVK for the insight “… that German unification has to be more than the admission of 15 million relatives and some square miles of land ….”809 The introduction of social state goals of labor, housing, and social security nonetheless received strong (simple) majorities in the GVK.810 The discussion within the GVK developed along fixed party lines and appeared like a rerun of old arguments. The conservative arguments against social state goals were classics: social state goals would raise expectations that could not be fulfilled, and they would shift the authority for political decisions from the legislature to the judiciary.811 As regards

807 See also Scholz, ZfA 1991, 683 ff.; Isensee, Braucht Deutschland eine neue Verfassung? (1992); Vogel, NJ 1994, 146 with further references in his note 5 on p. 146; see also Vogel’s summary of the conservative position and the CDU/CSU representatives’ reaction to it during the 209. Meeting of the Bundestag on Feb. 4, 1994, in: Stenographic Report of the 209. Meeting of the Bundestag on Feb. 4, 1994, reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 694 ff. (700). Heitman considers the entire debate over amending the GG to be a scheme by the FRG’s left to implement constitutional changes it had been promoting for years, see Heitmann, in: FS f. Helmrich, 220, 221 ff., 226. 808 See, for example, Vogel (SPD), in the protocol of the constituting session of the GVK on January 16, 1992, reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 480 f., 496 f.; see also Gerhard Riege (PDS), ibid., 486 f. 809 Burkhard Hirsch in the 209. Meeting of the Bundestag, in: Stenographic Report of the 209. Meeting of the Bundestag on Feb. 4, 1994, in: Fischer/Künzel (Hrsg.), Bd. III, 722. 810 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 589; Quint, The Imperfect Union, 117. 811 See the CDU/CSU’s and the FDP’s conclusions from the work of the GVK in: GVK Final Session Protocol, in: Fischer/Künzel (Hrsg.), Bd. II, 495, 499; a summary of the classical conservative arguments against social state goals can also be found in Quint, 47 Am. J. Comp. L. 303, 315 (1999). It is important to note that these arguments are almost verbatim the same arguments that constitutional scholars in the Weimar Republic had brought forth against traditional civil rights, see Ramm, in: Böckenförde/Jekewitz/Ramm (Hrsg.), 20.

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public freedom, the conservatives argued that the 1989 Revolution’s experience with citizens’ direct participation in politics could not justify an introduction of more citizens’ participation into the GG. The situation in the former GDR, the argument went, could not be compared with the situation in a democratic state like the FRG.812 Often, votes within the GVK were only scheduled after GVK members had been explicitly instructed on how to vote by their respective party groups in the Bundestag or by their state governments.813 Aware of their ability to prevent 2/3 majorities on any subject, the CDU/CSU was highly reluctant to compromise. Exemplary for the political tinkering within the GVK is a case in which the CDU/CSU threatened their own GVK representatives with removal from the commission if they voted for a specific proposal on environmental protection.814 Even though the CDU’s own Rupert Scholz, law professor and respected constitutional law expert, had drafted the proposal, the CDU/CSU group in the Bundestag had disapproved of it. In protest against his own party’s interference, Scholz temporarily stepped down from his position as the GVK’s co-chair. Ullmann, in response to this incident, completely resigned from the GVK and said that “it [the GVK] was no longer doing serious work.”815 As a result, most of the GVK’s proposals for constitutional amendments were related to furthering Germany’s integration in the EU and to the relationship between the federal government and the states.816 The GVK’s success with respect to integrating revolutionary achievements into unified Germany’s constitutional order was moderate, at best. GVK proposals related to the 1989 Revolution’s constitutional achievements were the following:817

812 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 598. 813 See ibid., 523. 814 See for this and the following Quint, The Imperfect Union, 116; see also GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 520. 815 Quint, The Imperfect Union, 116. 816 For a list of the amendments to the GG proposed by the GVK, see Recommendations of the Common Constitutional Commission on Changing and Complementing the Grundgesetz, reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 684 ff. For the extended version of the GVK recommendations, including annotations, see GVK Report, in Fischer/Künzel (Hrsg.), Bd. III, 527 ff. 817 See ibid., 684.

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– To add a state goal of environmental protection; – To add a new sentence to Art. 3 II GG stating that the state furthers the actual implementation of equal rights for women and men and works toward the removal of existing disadvantages. The GVK made these proposals in a report submitted to the federal legislature in November 1993.818 It took the legislature until September 23, 1994 to adopt the following amendments, which may be considered integrations of revolutionary achievements into unified Germany’s constitutional order:819 – Art. 3 II, 2 GG: The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist; – Art. 20 a GG: Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.820 Particularly participants from the former GDR were disappointed with these results. Roland Resch, for example, Minister from the state of Brandenburg, complained that East Germans’ experiences and constitutional demands had not been taken up and had not been integrated into “a real all-German constitution” (“eine wirkliche gesamtdeutsche Verfassung”).821 Konrad Elmer (SPD) complained that the debate within the GVK had been neither sufficiently public nor sufficiently open to new arguments and that East Germans’ main concerns had not been considered.822 But also the West German Hans-Jochen Vogel (SPD) said that the constitutional changes brought about by unification were minimal and that Germany had missed unification as an opportunity to modernize and

818 See GVK Report, in Fischer/Künzel (Hrsg.), Bd. III, 527 ff. 819 September 23, 1994 is the day on which the Bundesrat accepted the GG-amending law as adopted by the Bundestag on September 6, 1994, see Beschluß des Bundesrates v. 23.09.1994, reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 1002. For the GG-amending law, see BGBl I 1994, 3146. 820 This version entered into force on Nov. 15, 1994. The state goal of animal protection was added in 2002 (BGBl I 2002, 2862), see Scholz, in: Maunz/Dürig, Art. 20 a Rn 1. 821 See Resch, in: GVK Final Session Protocol, in: Fischer/Künzel (Hrsg.), Bd. II, 508, 509. 822 See Elmer, in: GVK Final Session Protocol, in: Fischer/Künzel (Hrsg.), Bd. II, 509.

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improve the GG.823 He, too, complained that the GVK had not implemented constitutional impulses from the new states.824 Conservatives, on the other hand, welcomed the lack of change.825 IV. An exception: environmental protection Despite the disappointment with the legislature’s reluctance to integrate revolutionary achievements into the existing constitutional order under the GG, there is one example of a successful integrative effort by the legislature: environmental protection. On October 27, 1994, after a long and painful struggle between the CDU/CSU and the SPD in the GVK, unified Germany’s legislature adopted the new Art. 20 a GG.826 For the first time in the GG’s history, it establishes an explicit constitutional state goal of environmental protection. Conservatives were quick to announce that the amendment had nothing to do with the 1989 Revolution and German unification. Scholz, for example, writes that the introduction of Art. 20 a GG was “not really caused by unification” (“nicht eigentlich einigungsbedingt”) and “had no immediate-substantive connection” with it (“verfügte also über keinen unmittelbar-thematischen Bezug zur deutschen Wiedervereinigung”).827 My thesis is that this is wrong. I think that environmental protection is a case in which unified Germany’s legislature successfully integrated an important achievement of the 1989 Revolution into unified Germany’s constitutional order. The conservative opinion is unable to convincingly explain why unified Germany’s legislature succeeded in introducing environmental protection, a goal that had featured prominently on the revolutionaries’ constitutional agenda, into the GG in 1994, after the old FRG’s

823 Vogel, NJ 1994, 145 ff. (149). 824 See Vogel, in: Stenographic Report of the 209. Meeting of the Bundestag on Feb. 4, 1994, in: Fischer/Künzel (Hrsg.), Bd. III, 694 ff. (702). 825 See the statements of CDU/CSU and FDP representatives, in: GVK Final Session Protocol, in: Fischer/Künzel (Hrsg.), Bd. II, 494 ff. and in: Stenographic Report of the 209. Meeting of the Bundestag on Feb. 4, 1994, in: Fischer/Künzel (Hrsg.), Bd. III, 694 ff.; from the literature, see, for example, Isensee, NJW 1993, 2583, 2584; Quint, The Imperfect Union, 116. 826 BGBl I 1994, 3146. 827 See Scholz, in: Maunz/Dürig, Art. 20 a Rn 1.

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legislature, for more than 20 years and despite the fact that apparently all political parties had been in favor of it, had been unable to do so. In what follows I will first describe the new Art. 20 a GG and its adoption. I will then present the traditional understanding of why it was adopted, in order to finally elaborate my own thesis of Art. 20 a GG as a successful legislative effort to integrate a revolutionary achievement into the existing constitutional order under the GG. 1. The new Art. 20 a GG The adoption of Art. 20 a GG almost fell prey to party dispute. The CDU/CSU had originally insisted on two things: (i) an explicit “anthropocentric" orientation of environmental protection, i.e. the environment should only be protected insofar as it was related to humans and not for its own sake828; and (ii) an explicit “Gesetzgebungsvorbehalt”, i.e. a constitutional provision according to which the implementation and concretization of the constitutional state goal of environmental protection would primarily be the legislature’s task.829 The SPD and Die Grünen denied an anthropocentric orientation and wanted to protect the environment in its own right.830 They, moreover, rejected a Gesetzgebungsvorbehalt because, according to the SPD, that would have provided the legislature with practically unlimited discretion with respect to balancing environmental protection with other constitutional principles. It would thus have demoted environmental protection to a second-rate state goal.831 When an agreement between the parties seemed about to fail, the GVK was able to come up with a last-minute compromise that finally managed to reach a narrow 2/3 majority.832 As regards Art. 20 a GG’s content, it is undisputed that it establishes environmental protection as an objective state goal, not as a subjective individual right.833As such, it is binding on all governmental institutions

828 829 830 831 832 833

See Scholz, in: Maunz/Dürig, Art. 20 a Rn 38 with further references. Ibid. Rn 22 ff., 46 ff. Ibid. Rn 38. Ibid. Rn 23. Ibid. Rn 23 – 25. See for this and the following Scholz, in: Maunz/Dürig, Art. 20 a Rn 32 ff. with further references.

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but does not grant an individual right to bring a law suit based on the claim that Art. 20 a GG has been violated. It is also uncontroversial that Art. 20 a GG marks the first time in the FRG’s history that the GG includes an explicit state goal of environmental protection.834 2. Traditional understanding I have already mentioned Scholz’s view that Art. 20 a GG’s adoption was, regardless of its outward connection with Art. 5 UT, “not really caused by unification” and had no “immediate-substantive relation” with it.835 This statement denies any meaningful connection between the 1989 Revolution, unification, and the introduction of environmental protection into the GG. Instead, Scholz tries to explain the new Art. 20 a GG as the product of a constitutional debate that had been going on in the old FRG for many years. He points out that, since the mid-1970 s, the states of the old FRG had been adding provisions on environmental protection to their constitutions.836 Even the Weimar Republic’s constitution (Weimarer Reichsverfassung, WRV) had contained a provision on environmental protection.837 Scholz argues that, long before Art. 20 a GG’s adoption, the GG included a variety of provisions protecting the environment.838 As examples he mentions provisions that grant the federal legislature the authority to adopt laws with environmentally protective effects, such as the authority to adopt laws related to the peaceful use of nuclear energy and the protection against its dangers (Art. 74 I Nr. 11 a GG); laws on the protection of plants and animals (Art. 74 I Nr. 20 GG); and laws on the protection of nature and landscape conservation (Art. 75 I Nr. 3 GG). Scholz further mentions the social-state principle (Art. 20 I GG, 28 I GG), which may oblige the government to actively protect the environment in case ecological problems acquire a “socio-political meaning”. Scholz points out that Art. 2 II, 1 GG and Art. 1 I GG grant what he calls an “ecological existential minimum”, i.e. an individual right to ecological minimum conditions necessary

834 835 836 837 838

164

Ibid. Rn 30. Supra., 162. See Scholz, in: Maunz/Dürig, Art. 20 a Rn 3. Ibid. Rn 4 referring to Art. 150 I WRV. See for this and the following ibid. Rn 7 ff.

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for a life in human dignity. Scholz finally refers to political initiatives in the old FRG during the early/mid 1980 s that had been aiming at adding environmental protection to the GG. Other authors go back to the early 1970 s to demonstrate that the FRG did not need the 1989 Revolution and German unification in order to have a serious debate on constitutional environmental protection.839 Even Helmut Kohl, in his government declaration of March 18, 1987, had spoken out in favor of constitutional environmental protection.840 The traditional understanding’s bottom line is that all political parties in the old FRG agreed on constitutional environmental protection; it only took them until 1994 to finally find a common formulation that allowed the adoption of the new Art. 20 a GG.841 3. My understanding: the adoption of Art. 20 a GG as an act of IS Emphasizing the deep roots of constitutional environmental protection in West Germany, the traditional understanding is neither able to explain, nor to paper over, an important fact: despite the intense long-term debate and the apparently broad agreement among all political parties in the old FRG, these parties had been unable to agree on a constitutional state goal of environmental protection by the fall of 1990. In the fall of 1994, however, four years after German unification and following a constitutional debate based on Art. 5 UT, they were able to agree on Art. 20 a GG. Why? The traditional understanding mostly avoids that question.842 One author at least concedes some correlation between this agreement, the 1989 Revolution, and German unification. Michael Kloepfer writes that “[w]ith unification the climate with respect to constitutional amendments at the federal level changed, particularly regarding environmental protection ….” He, moreover, refers to the fact that both the Treaty on the Currency, Economic, and Social Union and the UT stipulated environmental 839 See Müller-Bromley, in: Fischer/Künzel (Hrsg.), Bd. I, 229 ff. with further references. 840 Ibid., 231. 841 See Scholz, in: Maunz/Dürig, Art. 20 a Rn 19 ff., 25; Müller-Bromley, in: Fischer/ Künzel (Hrsg.), Bd. I, 269 ff. 842 Scholz, for example, does not say a word as to why an agreement had finally become possible, see Scholz, in: Maunz/Dürig, Art. 20 a GG; similarly MüllerBromley, in: Fischer/Künzel (Hrsg.), Bd. I, 267 ff.

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protection as a goal of unified Germany.843 Kloepfer considers this stipulation an acknowledgement of “the outstanding role that citizens’ and environmental groups had played in overthrowing the GDR regime”.844 He hints at “political pressure” on unified Germany’s federal legislature, which had increased in the aftermath of unification and speculates that the legislature saw the adoption of a state goal of environmental protection as a chance to lend some “glamour” to the otherwise “dry” project of reforming the GG.845 I want to provide a more specific and a more specifically constitutional explanation. My thesis is that Art. 20 a GG is the result of a popular mandate that the revolutionary East Germans, in their capacity as an important part of the entire German people, had given unified Germany’s legislature. Environmental protection had been an important element of the 1989 Revolution’s constitutional agenda; it had been transferred to unified Germany through the UT and the new state constitutions; by adopting the new Art. 20 a GG, unified Germany’s legislature integrated it into the existing GG. The citizens’ movements had made environmental protection an important goal of the new government they had wanted to establish through the peaceful Revolution. That can already be seen in the citizens’ movements’ “Call for an independent GDR”, published in November 1989. The call mentioned environmental protection right next to revolutionary goals, such as peace, individual freedom, and social justice.846 Reconciling a market economy with democracy, individual rights, social justice, and environmental protection had been at the heart of the citizens’ movements’ constitutional agenda.847 Environmental protection groups had been among the first opposition groups in the GDR in the 1980 s.848 The people in the streets had adopted environmental protection as an important constitutional goal of their Revolution. Pictures of Monday demonstrations in Leipzig show banners warning against “progress without ecology” and “ecological death” and demanding “more ecology in

843 Kloepfer, in: Bonner Kommentar zum Grundgesetz, Art. 20 a Rn 7; also Kloepfer, DVBl 1996, 73. 844 Kloepfer, in: Bonner Kommentar zum Grundgesetz, Art. 20 a Rn 7. 845 Ibid. 846 See supra, 45. 847 See supra, 53 ff. 848 See Tetzner, 53.

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industry and the agrarian economy” right next to banners calling for the SED government’s resignation, free elections, and German unification.849 The SED regime had utterly disregarded environmental protection and had turned large parts of the GDR into toxic waste lands. East Germans had been directly confronted with shocking dimensions of environmental destruction in the name of economic growth.850 The contamination of air and water through the chemical industry and the devastation of landscapes through intense surface mining of brown coal had been particularly striking in Leipzig and its vicinity.851 Calls for a “clean environment” had thus been constantly present at the Leipzig Monday demonstrations.852 Tetzner, a regular participant in these demonstrations, writes that “the stinking rivers” and “the often toxic air in the city” were among the demonstrators’ major concerns.853 The people had held the government responsible for the industry and the pollution it had caused. The first institutional reaction to the peoples’ demands had come from the SED regime, which, in response to the people in the streets and for the first time in GDR history, had published formerly secret data on air pollution in Leipzig.854 The second institutional reaction had come from the CRT who had wanted to devise a new constitution for a new GDR because a study of the GG had convinced it that the GG was not the best available solution.855 The CRT had wanted the new GDR Constitution to include a modernized basic rights catalogue including, among other things, environmental protection.856 The RTD of April 4, 1990 had implemented these ideas and had manifested environmental protection as a constitutional goal already in its

849 These banners are visible on pictures of Monday demonstrations in Leipzig on display in Zeitgeschichtliches Forum Leipzig, Grimmaische Strasse 6, 04109 Leipzig. 850 Writing about the GDR in 1989, Neubert states that “environmental pollution had reached insufferable dimensions”, see Neubert, 33. Research undertaken by the SED itself had found that the East Germans were particularly dissatisfied with the deteriorating environmental situation, see Neubert, 34. The renowned GDR painter Wolfgang Mattheuer criticized “… unscrupulous, exploitative industrialism …” that “… determined and suppressed life …”, quoted in: Neubert, 37. 851 See Tetzner, 53. 852 Ibid., 51, 63, 91. 853 See ibid., 53. 854 Ibid., 64. 855 See Rogner, 50. 856 See ibid.; supra, 89 f.

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preamble, right next to more traditional constitutional principles, such as individual dignity and freedom, equal rights for everyone, and equal treatment of the sexes. Art. 32 (1) RTD had stated that land and water shall be used in compliance with the interests of the general public and future generations. Art. 33 (1) RTD had established environmental protection as a state goal. Art. 33 (3) RTD had even granted an individual right to information about environmental data and had given environmental protection groups the right to bring law suits. An individual right to information about environmental data had been codified for ages in the U.S.857 as well as in several European countries, such as Sweden (1949), The Netherlands (1978), Denmark (1985), and Greece (1986).858 The same right had found its way into the GDR’s Regulation on Environmental Data of November 13, 1989 as well as into the EC Directive on Environmental Information of June 7, 1990. It took unified Germany’s legislature until July 1994 to implement this Directive through the Environmental Information Act of July 8, 1994. The de Maiziere government had emphasized its goal of establishing an ecologically responsible social market economy and had presented environmental protection as a key element of an economic cooperation that it had wanted to develop with the FRG and the EC.859 Finally, the post-revolutionary GDR’s first freely elected VK had legally manifested the revolutionary call for environmental protection in the VGG of June 17, 1990.860 Art. 1 I VGG had committed the GDR to be, among other things, an “ecological state”. Art. 2 VGG had stated that the use of private property must serve the common good as well as the conservation of nature. Art. 6 VGG had made protection of the natural environment an obligation of the government and of all citizens. Art. 5 and 34 UT as well as the new state constitutions had transferred the revolutionary achievement of constitutional environmental protection to unified Germany.861

857 Freedom of Information Act of Jul. 4, 1966. 858 For this and the following, see Müller-Bromley, in: Fischer/Künzel (Hrsg.), Bd. I, 245. 859 See supra, 111. 860 See for this and the following supra, 117. 861 See supra, 142. Art. 16 of the Treaty on the Establishment of a Currency, Economic, and Social Union of May 18,1990 had already stipulated environmental protection as a goal of the contracting parties (i.e. the GDR and the FRG). Referring

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Against this background, the revolutionary East Germans had given unified Germany’s federal legislature a clear mandate to introduce environmental protection into the GG and the West Germans had agreed by signing the UT. Viewed from this perspective, the fact that controversies that had prevented an environmental protection amendment of the GG for more than 20 years could be overcome in 1994 acquires a new meaning. What the traditional understanding tries to pitch as the result of pure chance or of “political pressure” starts to appear as a legislative act of intergenerational synthesis (IS): unified Germany’s legislature took up the revolutionary achievement of constitutional environmental protection and tried to integrate it into the existing constitutional order under the GG. Signs of this integrative or, if you will, synthetic effort are visible in the text of the new Art. 20 a GG. The responsibility for “future generations” is a clear reference to the RTD, which was the first constitutional document in Germany to refer to “future generations” in connection with environmental protection.862 As a result of synthesis, the revolutionaries’ original demand for a judicially enforceable individual basic right to environmental protection (expressed in the individual constitutional right to information about environmental data and in the right of environmental groups to bring law suits)863 has given way to environmental protection as a purely objective state goal. While the CDU/CSU no longer insisted on an explicit anthropocentric orientation and an explicit Gesetzgebungsvorbehalt, the SPD gave up on the explicit priority of environmental protection over other constitutional principles. There is no doubt that the new Art. 20 a GG has something of a “formula compromise” that enables the political opponents to interpret it in a way that it says whatever they want it to say.864 Still, Art. 20 a GG manifests the revolutionary achievement of constitutional environmental protection in an explicit provision of the GG for the first time in the GG’s history. It is thus more meaningfully described as a successful legislative act of IS. to this Art. 16, Art. 34 UT states that environmental protection is the legislature’s task. 862 See Art. 33 (1) RTD and Müller-Bromley, in: Fischer/Künzel (Hrsg.), Bd. I, 268. 863 See Art. 33 (3) RTD and some of the new states’ constitutions, see supra, 148. 864 That is particularly conspicuous in Scholz’s annotation of Art. 20 a GG, where Scholz tries to interpret an anthropocentric orientation as well as a “Gesetzgebungsvorbehalt” into the provision, even though these were the points on which the CDU had compromised, see Scholz, in: Maunz/Dürig, Art. 20 a Rn 38 ff. and 41 ff.

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Mostly, however, the legislature failed in its attempts to integrate transferred revolutionary achievements into unified Germany’s constitutional order under the GG. This is why the BVerfG stepped in and took over the integrative function. Using Ackerman’s theory of IS as an analytical tool, in what follows I will oppose the dominant opinion and will explain groundbreaking decisions of the BVerfG in the aftermath of German unification neither doctrinally nor as acts of judicial politics but as attempts by the court to integrate revolutionary achievements into the existing constitutional order under the GG by way of constitutional interpretation. B. The BVerfG as an integrative institution In the aftermath of German unification, the BVerfG decided a number of groundbreaking cases that mark clear changes compared to what the court had been saying prior to unification. All these changes are related to topics that featured prominently on the 1989 Revolution’s constitutional agenda. It started with Bodenreform I865 in 1991, where the court held constitutional the confirmation of the Bodenreform-expropriations in Art. 143 III GG. Next was Nachtarbeit866 in 1992, a decision in which the court established a government obligation to realize equality for women two years before the legislature managed to confirm that obligation in a new Art. 3 II, 2 GG. It followed Abortion II867 in 1993, which gave up the requirement of criminal punishment of abortions during the first twelve weeks of the pregnancy after counseling. Finally, also in 1993, the court introduced the protection of a tenant’s right of ownership in the rented apartment as property under Art. 14 I, 1 GG.868 In all these cases, most authors have either denied any changes or have tried to explain them doctrinally or as acts of judicial politics. This is what I want to call the traditional understanding of the cases. Nobody, as far as I

865 BVerfG Urteil v. 23.04.1991, 1 BvR 1170, 1174, 1175/90; NJW 1991, 1597 ff.; see infra, 171 ff. 866 BVerfG Urteil v. 28.01.1992, 1 BvR 1025/82, 1 BvL 16/83, 1 BvL 10/91, BVerfGE 85, 191-214; see infra, 186 ff. 867 BVerfG, Urteil v. 28.05.1993, 2 BvF 2/90, 2 BvF 4/92, 2 BvF 5/92, NJW 1993, 1751 ff.; see infra, 203 ff. 868 BVerfG, Beschluss v. 26.05.1993, 1 BvR 208/93, BVerfGE 89, 1-14; see infra, 219 ff.

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see, has taken into account that constitutional achievements of the 1989 Revolution may have had a substantive impact on the court’s decisions. Based on my analysis of the 1989 Revolution and on the fact that some of the Revolution’s constitutional achievements had been transferred to unified Germany, my thesis is that the traditional understanding overlooks the 1989 Revolution as an event with a substantive meaning for unified Germany’s constitutional law. I will argue that the court’s decisions are more realistically and more meaningfully understood as acts of IS, in which the court, by way of constitutional interpretation, took up revolutionary achievements transferred to unified Germany and tried to integrate them into the existing constitutional order under the GG. In what follows I will describe the court’s decisions and explain their characteristics, summarize and criticize the traditional understanding of the decisions, and demonstrate why the decisions are more realistically and more meaningfully understood as acts of IS. I. Bodenreform One of the most hotly debated topics of German unification was the treatment of expropriations869 initiated by the Soviet occupying force on the territory of the Soviet occupation zone (later the GDR) between 1945 and 1949 (the so-called Bodenreform-expropriations, or Bodenreform).870 Viewing the big landowners in East Germany (the so-called Junkers) as pillars of the Nazi regime, the Soviet Union wanted to fundamentally restructure German society in the occupied territory after the end of World

869 Many authors think the term „expropriations“ does not properly describe the facts of the case. Such authors argue that expropriations are governmental takings for the common good while the Bodenreform-takings where directed against a specific class of property holders for political reasons. They were thus “confiscations”, see, for example, Papier, NJW 1991, 194; Maurer, JZ 1992, 185; Kimminich, in: Ipsen (Hrsg.), 82; Felix, NJW 1995, 2697. I use the term “expropriations” because that is the term the court used. 870 The official name of these expropriations is: “Enteignungen auf besatzungsrechtlicher bzw. besatzungshoheitlicher Grundlage (1945 bis 1949)“, see Gemeinsame Erklärung der Regierungen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen vom 15 Juni 1990 (Joint Declaration), reprinted in: Stern/Schmidt-Bleibtreu, Einigungsvertrag, 823 ff. (indent No. 1 on p. 823).

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War II. One measure to do so was what came to be known as the Bodenreform: the expropriation of both every estate exceeding 100 hectares (approximately 250 acres) and the property of other people who were assumed to have supported the Nazis.871 3.2 million hectares, or one third of the available agricultural lands in the GDR, were expropriated during the Bodenreform.872 Quint writes that “[m]any owners were forced to leave their property on a few days’ notice taking only the possessions that they could carry with them.”873 The expropriated owners were not compensated in the east, but those who made it to the west received compensatory payments from the West German government.874 Expropriated property was distributed, mostly in small plots of seven to nine hectares, among former landless peasants, workers, and refugees from the territories east of the Oder-Neisse line. As a result of the Bodenreform, around 550,000 people received around 2.2 million hectares of land.875 When German unification became a serious topic in early 1990, former owners of Bodenreform-property began to lobby for a return of expropriated property to its former owners.876 They were supported by the FRG government, who wanted to undo expropriations as far as possible. The GDR government, on the other hand, worried about the rights of those who had received expropriated property. The opposing positions prevented an agreement on property matters in the Treaty on the Currency, Economic, and Social Union of May 18, 1990.877 However, on June 15, 1990, the governments of East and West Germany managed to sign a “Joint Declaration on the Regulation of Open Property Questions” (Joint Declaration),878 declaring that Bodenreform-expropriations will not be reversed

871 I have taken this and the following from Quint, The Imperfect Union, 125. 872 See Annex III to the UT, with annotations by Schmidt-Bleibtreu, in: Stern/ Schmidt-Bleibtreu (Hrsg.), Einigungsvertrag, 826. 873 Quint, The Imperfect Union, 125. 874 The payments were based on the “Lastenausgleichsgesetz”, see Quint, The Imperfect Union, 125. 875 See Annex III to the UT, with annotations by Schmidt-Bleibtreu, in: Stern/ Schmidt-Bleibtreu (Hrsg.), Einigungsvertrag, 826. 876 For this and the following, see Quint, The Imperfect Union, 127. 877 Ibid.. 878 Anlage III zum Einigungsvertrag, Gemeinsame Erklärung der Regierungen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen vom 15 Juni 1990, in: Stern/Schmidt-Bleibtreu, Einigungsvertrag, 823 ff.

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and that a future all-German parliament may decide on possible “governmental compensatory payments” (“staatliche Ausgleichsleistungen”).879 At the same time, the Joint Declaration provided for a fundamentally different treatment of property expropriated by the GDR after 1949 (i.e. not Bodenreform-property), which “in principle” (“grundsätzlich”) must be returned to the former owners or their heirs.880 The Joint Declaration also applied the principle of restitution to property taken as a result of racial, political, religious, or ideological persecution by the Nazi regime between 1933 and 1945 in the territory that later became the GDR.881 The Joint Declaration was incorporated into the UT by Art. 41 (1) UT and into the GG by Art. 143 III GG.882 Furious about this outcome, former owners of Bodenreform-property and their heirs, respectively, appealed to the BVerfG. Art. 143 III GG, they argued, violated, among others, their most fundamental constitutional rights to human dignity and protection of property and thus did not fit into the GG.883 They argued Art. 143 III GG was an “unconstitutional amendment of the GG” because it violated Art. 79 III GG, the so-called “eternity clause”.884 Not returning illegally taken property, they argued, violated the principle of protection of property, which was part of human dignity. Human dignity, the argument continued, was a fundamental constitutional principle protected by Art. 1 I GG and as such exempted from the possibility of constitutional amendment by Art. 79 III GG. From this the plaintiffs

879 See Joint Declaration, Indent No. 1, in: Stern/Schmidt-Bleibtreu, Einigungsvertrag, 823 (my italics). 880 See Joint Declaration, Indent No. 2 ff., in: Stern/Schmidt-Bleibtreu, Einigungsvertrag, 823 ff. 881 See Joint Declaration, ibid., in connection with § 1 (6) of the Act for the Settlement of Open Property Issues (Gesetz zur Regelung offener Vermögensfragen) (BGBl II 1990, 1159). 882 According to Art. 41 (3) UT, the FRG will not adopt any legal provisions that contradict the Joint Declaration. 883 See BVerfG, NJW 1991, 1598. 884 Art. 79 III GG prohibits constitutional amendments that “affect” fundamental principles of the GG. It reads: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation, on principle, in the legislative process, or the principles laid down in Articles 1 and 20 shall be prohibited” (“Eine Änderung dieses Grundgesetzes, durch welche die Gliederung des Bundes in Länder, die grundsätzliche Mitwirkung der Länder bei der Gesetzgebung oder die in den Artikeln 1 und 20 niedergelegten Grundsätze berührt werden, ist unzulässig”).

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concluded that the FRG government was obliged to return Bodenreformproperty to its original owners or their heirs. 1. The decisions On April 23, 1991, in Bodenreform I, the BVerfG’s First Senate held Art. 143 III GG constitutional.885 Procedurally, the court accepted the plaintiffs’ direct appeal to the BVerfG because of the matter’s “general importance”.886 Substantively, the court held that Art. 143 III GG did not violate Art. 79 III GG. Referring to “the principles laid down in Art. 1 and 20 [GG]”, Art. 79 III GG withdraws the principles of human dignity and human rights, the principle of equality, as well as the basic principles of the rule of law and the social state from the possibility of impairment through constitutional amendment.887 The court argued that when Art. 143 III GG (confirming the Bodenreform) had been adopted the former owners had not held an enforceable proprietary position, which the Bodenreform’s confirmation could have deprived them of.888 According to the law in force in the Soviet occupation zone at the time of the Bodenreform, the expropriations had been considered legal or at least incontestable.889 The FRG government, the court argued, could not be held responsible for the expropriations since its power had neither factually nor legally extended to the territory on which the expropriations had taken place.890 The expropriations’ legality could not be measured by the GG because the GG had not been in force at the time the expropriations occurred.891 Even according to the law in force in the FRG territory, the court argued, the former owners had not retained an enforceable proprietary position. Based on the FRG’s international expropriation law, expropriations undertaken by another state were

885 See BVerfG, Urteil v. 23.04.1991, 1 BvR 1170, 1174, 1175/90; NJW 1991, 1598 ff. 886 See § 90 II, 2 Bundesverfassungsgerichtsgesetz (BVerfGG); see BVerfG, NJW 1991, 1598. 887 See BVerfG, NJW 1991, 1599. 888 Ibid. 889 Ibid. 890 See ibid. 891 Ibid.; the GG entered into force at the end of the day of May 23, 1949, see Art. 145 II GG.

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accepted as lawful as long as the expropriating state remained within the limits of its powers (principle of territoriality).892 According to the court, it did not need to be decided whether or not the former owners had had public-international-law based claims against the Soviet occupying force, which might have been undermined by the expropriations’ confirmation in Art. 143 III GG because such claims would in any case have been unenforceable and thus all but worthless.893 The court held, however, that, particularly based on the social-state principle (Art. 20 I GG), the FRG government was obliged to balance people’s burdens resulting from WW II. Still, the legislature had broad discretion in devising such balancing and was not obliged, as a matter of Art. 79 III GG, to return property expropriated by a foreign power.894 The decision to confirm Bodenreform-expropriations but not expropriations undertaken before 1945 and after 1949, according to the court, did not violate the “basic elements of equality” protected by Art. 79 III GG. The court argued that the FRG government had been entitled to assume that the confirmation of Bodenreform-expropriations had been necessary to make the Soviet Union and the GDR agree with German unification.895 The court held, however, that the principle of equality (Art. 3 I GG) prevented the legislature from excluding all compensation for the Bodenreform-expropriations.896 When plaintiffs asserted that the court, in Bodenreform I, had decided on the basis of incorrect facts, the BVerfG’s First Senate, on April 18, 1996, handed down another decision on the constitutionality of the Boden-

892 BVerfG, NJW 1991, 1599, 1600. 893 See BVerG NJW 1991, 1600. In a decision on Oct. 26, 2004, the Second Senate confirmed the First Senate’s holding. It held that the FRG government could not be held responsible for the Bodenreform-expropriations, public international law did not oblige the FRG to return Bodenreform-property, and the FRG government had been entitled to conclude that repealing Bodenreform-expropriations would have contradicted the goal of German unification, see BVerfG Beschluss v. 26.10.2004, 2 BvR 955/00, 1038/01, beck-online version, BeckRS 2004 26155, p. 15, ind. 2. For a legitimate critique of the Second Senate’s majority opinion, see Lübbe-Wolff’s dissent in BVerfG, ibid., pp. 22 ff. Lübbe-Wolff argues that the Second Senate’s opinion is superfluous because the First Senate had already decided all relevant questions and the Second Senate did not reach different conclusions. 894 See BVerfG, NJW 1991, 1600. 895 Ibid., 1600, 1601. 896 Ibid., 1601.

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reform’s confirmation (Bodenreform II).897 The court confirmed its earlier holding that the different treatment of Bodenreform-expropriations on the one hand and expropriations before 1945 and after 1949 on the other did not violate “basic elements of equality” (“Grundelemente des Gleichheitssatzes”).898 The FRG government, equipped with broad political discretion in matters of foreign policy, had not acted “contrary to its duty” (“pflichtwidrig”) by assuming that the governments of the Soviet Union on the one hand and of the GDR on the other had not been willing to agree to German unification without the Bodenreform’s confirmation.899 The court did not find anything that had made it obvious for the FRG government that this assumption had been based on incorrect facts.900 Regarding possible public-international-law claims against the USSR, which may have been undermined by the FRG’s confirmation of Bodenreform-expropriations, the court confirmed its first holding according to which such claims had been unenforceable and thus all but worthless.901 This aspect, according to the court, also deprived plaintiffs of claims based on the principle of ordre public since they had had no enforceable legal position prior to unification and unification could only be achieved by confirming the expropriations.902 In a third decision, the court’s First Senate decided a case brought against provisions of a law regulating compensatory payments for victims of Bodenreform-expropriations, the co-called Indemnification and Compensation Act (Entschädigungs- und Ausgleichsleistungsgesetz, EALG).903 The court held that the FRG’s obligation to pay compensations for financial losses that had been caused by a government that was not bound by the GG could not be based on specific basic rights of the GG but could result from the GG’s social-state principle (Art. 20 I, 28 I GG).904 Regulation of such compensation must consider the rule of law (Rechtsstaatsprinzip) and the general principle of equality (allgemeiner

897 BVerfG, Beschluss v. 18.04.1996, 1 BvR 1452/90, 1459/90, 2031/94; NJW 1996, 1666 ff. 898 See ibid., 1668. 899 See ibid. 900 Ibid., 1668, 1669 ff. 901 Ibid., 1671. 902 BVerfG, NJW 1996, 1671. 903 BVerfG, Urteil v. 22.11.2000, 1 BvR 2307/94, VIZ 2001, 16 ff. 904 BVerfG, VIZ 2001, 18.

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Gleichheitssatz).905 The social-state principle, the court argued, required everybody to participate in burdens that resulted from a common destiny and that, more or less by chance, only affected individual citizens. The legislature enjoyed broad discretion in compensating for such burdens and might, among other things, consider its financial capacities and future obligations in determining the appropriate compensation.906 Based on these principles, the court, in a long, detailed, and controversial decision, the details of which are not relevant in this context, held the contested provisions of the EALG constitutional.907 Finally, even the European Court of Human Rights (ECHR) confirmed the BVerfG’s holding that the FRG government was not responsible for expropriations undertaken in the Soviet occupation zone.908 Therefore, the ECHR held that it had no jurisdiction to examine these expropriations’ legality.909 It further held that the former owners had had no legal position at the time of German unification that could have been protected by the European Convention on Human Rights and that the FRG government might have violated by confirming the Bodenreform-expropriations.910 2. Traditional understanding The traditional understanding of these decisions, as long as it was not simply polemic, may be characterized as either doctrinal or political. Polemic. The decisions’ polemic criticism gives an idea of the extremism with which some authors engaged in the debate. Wolfgang Graf Vitzthum, for example, refers to the expropriated property as “bloody booty” and to the new owners as “thieves”.911 Vitzthum implies that the Bodenreform-expropriations were part of a broader strategy by the USSR aiming at the economic, social, psychological, and physical “extermination”912 of a specific group of citizens, the Junkers, and that “the Junker” may well be regarded as “the Jew” of the German east under Soviet occu905 906 907 908 909 910 911 912

Ibid., 18, 19. Ibid., 18. Ibid., 19 ff. ECHR, NJW 2005, 2532, 2533. Ibid., 2533. Ibid., 2533 f. Vitzthum, 3. He actually uses the word “Vernichtung”, see Vitzthum, 14.

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pation.913 One author even calls upon the eighth/seventh commandment (“Thou shalt not steal”)914 to argue against the constitutionality of the EALG’s compensation rules and the BVerfG’s decision on the EALG.915 Doctrinal. Many authors challenge the argument that the Bodenreform’s confirmation was a conditio sine qua non for German unification.916 They doubt the Soviet Union’s insistence on the expropriations’ confirmation as a prerequisite for its acceptance of German unification.917 Some even accuse the FRG government of lying to the court about the Soviet Union’s insistence on the Bodenreform’s indefeasibility.918 Another argument is that the GDR was not powerful enough to impose conditions on the FRG government.919 However, after trying to undermine the factual basis for the government’s case, the authors often imply that, from a constitutional point of view, the court was eventually right to defer to the government’s decision to accept the Bodenreform’s confirmation.920 Some argue the court should have fully and openly based its decisions on the principle of judicial self-restraint in the sense of the U.S. political question doctrine since that would have increased the decisions’ pacifying effect.921 Some authors criticize the court for not sufficiently specifying and applying the requirements and limits of Art. 79 III GG in general and of the principles of human dignity (Art. 1 I GG) and equality (Art. 3 I GG) as comprised by Art. 79 III GG in particular 922 One argument states that the Bodenreform-expropriations were acts of arbitrariness, inhumanity, and brutality and, as such, violated the human-dignity core inherent in the pro-

913 Ibid.; in an attempt to distance himself from his own statement, Vitzthum argues that his comparison of the extermination of “the Junkers” with the extermination of “the Jews” would be “much too daring” (“viel zu gewagt”). Another author who eagerly compares the Bodenreform-expropriations with measures of the Nazi regime is Leisner in NJW 1991, 1569 and in DÖV 1992, 435. 914 For Catholics and Lutherans it’s the seventh, for everybody else the eighth commandment. 915 Märker, VIZ 2001, 238. 916 See, for example, Kimminich, in: Ipsen (Hrsg.), 84 ff. with further references. 917 Ibid.; Maurer, JZ 1992, 189. 918 Felix, NJW 1995, 2697 f. 919 See Maurer, JZ 1992, 189 note 35; Wasmuth, DtZ 1993, 335. 920 See Vitzthum, 11. 921 Stern commenting on Vitzthum, in: Stern (Hrsg.), Deutsche Wiedervereinigung, Bd. II, Teil 1, 36; Randelzhofer commenting on Vitzthum, in: Stern (Hrsg.), Deutsche Wiedervereinigung, Bd. II, Teil 1, 37, 38. 922 Maurer, JZ 1992, 190 f.; Vitzthum, 13.

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tection of property.923 Having thus turned the taking of property into a violation of the principle of human dignity, the argument considers the Bodenreform-expropriations violations of Art. 1 I GG and thus of Art. 79 III GG. As regards the principle of equality, it is argued that neither the Soviet Union’s nor the GDR’s insistence on the Bodenreform’s confirmation sufficed as a “substantive” (“sachlicher”) reason to justify the different treatment of Bodenreform-expropriations on the one hand and expropriations before 1945 and after 1949 on the other.924 Both arguments result in the unconstitutionality of the new Art. 143 III GG. Other authors consider the Bodenreform a violation of public international law.925 Under the Hague Convention (Haager Landkriegsordnung), they argue, the Soviet Union was not entitled to take private property in occupied Germany. Since the Bodenreform was a clear taking of private property it violated public international law.926 Hence, the authors conclude an obligation of the FRG government to return the expropriated lands to the former owners.927 Finally there are authors who anticipated and approve of the court’s doctrinal arguments.928 In particular, they argue that Art. 79 III GG in connection with the basic principles of human dignity and the rule of law do not oblige the FRG to undo property violations by another state power.929 They say, moreover, that the FRG government was constitutionally entitled to treat Bodenreform-expropriations differently from expropriations before 1945 and after 1949 because the government stayed within the limits of its broad discretion in political questions when it assumed that confirming the Bodenreform was a necessary condition for German unification.930 Judicial Politics. Other authors characterize the court’s decisions as acts of judicial politics. Quint, for example, writes,

923 Vitzthum, 13 ff. 924 Maurer, JZ 1992, 190 f. 925 See, for example, Kimminich, in Ipsen (Hrsg.), 80; Wasmuth, DtZ 1993, 334 ff. with further references; von der Beck, 247 ff. 926 Kimminich, Die Eigentumsgarantie, 76, 77. 927 Ibid., 77. 928 Papier, NJW 1991, 193 ff. with further references; Papier, in: Maunz/Dürig, Art. 14 Rn 273-277. 929 Papier, NJW 1991, 196. 930 Ibid., 196, 197.

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… the Constitutional Court sought to settle one of the most important constitutional and political questions arising from unification. In so doing, the court seemed to employ a mediating technique in which it chose no clear winners or losers but rather sought to create a political structure that embodied a compromise.931

Others, commenting on the court’s EALG decision, very generally accuse the court of engaging in judicial politics and of trying to protect state finances.932 Some authors complain that neither the court nor the FRG government sufficiently considered political aspects because they ignored that the return of the former owners to East Germany would have spurred economic growth there and would have facilitated Germany’s “inner unification”.933 Vitzthum asks, rhetorically, what long-term effects the court’s decisions may have on unified Germany’s “inner unity” and political stability.934 Otto Kimminich refers to constitutional history and warns that he knows “where such deep violations of the sense of justice can lead if politicians ignore them.”935 I think the traditional understanding is unable to convincingly explain what the court did and why. The doctrinal understanding, be it critical or affirmative of the court’s decisions, appears too technical and too much determined by the desired outcome. For example, the court held that the FRG was not responsible for the Bodenreform since its power had not extended to the territory in which the expropriations had taken place. However, if one would focus not on the expropriations but instead on the Bodenreform’s confirmation, the FRG was responsible. It was the FRG who decided to confirm these expropriations. So, would it have been indefensible to argue that the Bodenreform’s confirmation violated Art. 79 III GG because it corroborated a situation that had been brought about by fundamental human rights violations? With respect to Art. 79 III GG in connection with the principle of equality, the court argued that the FRG government had been entitled to assume that the USSR and the GDR had insisted on the expropriations’ confirmation as a condition for German unification. However, government officials’ statements on this matter are

931 Quint, The Imperfect Union, 138 (my italics). 932 Märker, VIZ 2001, 234, 236, 241; Doehring, NJW 2001, 642, both commenting on the court’s EALG decision of Nov. 22, 2000. 933 Vitzthum, 24 (note 51), 25, 26; similarly Kimminich, in: Ipsen (Hrsg.), 89 f. with further references. 934 Vitzthum, 6. 935 Kimminich, in: Ipsen (Hrsg.), 90.

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contradictory.936 Gorbachev, for example, said that “… [o]n my level as President of the USSR, that question was not dealt with, and neither can it be said that there was an alternative: either the restitution or the Big Treaty”.937 Did the court really examine whether or not the FRG government had been evidently wrong to assume that the Soviet Union had insisted on the expropriations’ confirmation? Wouldn’t the court have had to hear Gorbachev as a witness in order to verify Staatssekretär Dr. Kastrup’s statement that the Soviet Union would have refused to sign the Two-plus-Four Treaty without a prior confirmation of the Bodenreform by the FRG?938 I think these points suffice to show that, based on doctrinal arguments, the court might well have come out the other way. So, why did the court decide as it did? Judicial politics after all? The attempt to find a political middle ground to facilitate unification and give the East Germans the feeling that at least some of their concerns were taken seriously? Yet another attempt by the court to bolster its popularity and reaffirm its institutional standing as a voice of reason? To assume that would be giving up too quickly on the possibility to explain the court’s decisions in terms of constitutional interpretation. The traditional understanding’s problem is that, even though some of its arguments take history into account, it ignores the 1989 Revolution’s substantive meaning for unified Germany’s constitutional law. In what follows I will argue that the court’s decisions can only be understood properly once it is understood and taken into account that, by the time the court decided, there had been a successful revolution by the East Germans in 1989, the Bodenreform’s confirmation had been an important constitutional achievement of that Revolution, and the UT had transferred this achievement to unified Germany, where the institutions were now faced with the challenge of integrating it into the existing structures of West German constitutional law. Unified Germany’s federal legislature had tried to meet this challenge by adopting Art. 143 III GG, but the court saw that 936 See Maurer, JZ 1992, 189; Felix, NJW 1995, 2697 f.; Kimminich, in: Ipsen (Hrsg.), 84 ff. 937 That was Gorbachev’s answer on Jul. 5, 1994 to a question by the Oxford historian Prof. Norman Stone whether it “… is true or not that the USSR, during the negotiations over German unification, has made the prohibition of a restitution (a return of property that was confiscated during that time [1945 – 1949]) an unalterable condition? Is it true that you in particular insisted on the prohibition of such restitutions in the future?”, quoted in: Felix, NJW 1995, 2697, 2698. 938 See BVerfG, NJW 1996, 1666, 1670.

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a proper integration of Art. 143 III GG into the existing constitutional order under the GG required compensatory payments to the former owners. 3. My understanding: the decisions as acts of IS My thesis is that the court’s Bodenreform decisions are more realistically and more meaningfully understood, not as acts of doctrinalism or as acts of judicial politics, but as acts of constitutional interpretation in which the BVerfG self-consciously confronted the East Germans’ revolutionary achievement of the Bodenreform’s confirmation (Time Two) and tried to integrate it into existing structures of West German constitutional law (Time One). In short, they are better understood as acts of intergenerational synthesis (IS). During the 1960 s most of the Bodenreform-lands had been concentrated in so-called LPGs,939 even though, formally, individual farmers and members of the LPGs had remained owners of these lands. The owners’ right to dispose of this property, however, had been strongly limited.940 As a result of the 1989 Revolution, the old VK, in an act of March 06, 1990,941 had transformed these lands back into “real” private property by declaring the GDR Civil Code applicable and by repealing all former limitations on the owner’s right to dispose of the property.942 This had been one of the responses of Modrow’s “government of national responsibility”, the government that included participation of the CRT,943 to the revolutionary people’s call for individual rights, including the protection of property. When the GDR was headed towards German unification, it had quickly become clear that the people’s Bodenreform-property would soon be challenged by the former owners, most of whom were now living in the FRG.

939 Landwirtschaftliche Produktionsgenossenschaften (farmers’ cooperatives). 940 The property was termed “Working Property“ (“Arbeitseigentum”) and could, for example, not be sold but, under certain conditions, be passed on to heirs. For details, see Siewert, NJ 1992, 155 ff. 941 Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform v. 06.03.1990 (GBl. DDR I 1990, 134), the so-called „Modrow-Act“. 942 See § 1 Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform v. 06.03.1990 (GBl. DDR I 1990, 134); see also Dörr, JuS 2004, 808 ff. 943 See supra, 76.

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The East Germans’ call for protection of property had therefore increasingly included a call for confirming the Bodenreform. This call had caused institutional reactions. Wolfgang Ullman, member of the CRT and as such member of Modrow’s “government of national responsibility”, said that as a member of the [Modrow] government, I had to consider how we would handle the matters that resulted from World War II. I was of the opinion that one consideration must be that certain things would not be undone. For me, one of these things had always been the Bodenreform and the expropriation of groups in society that had contributed very significantly to Hitler’s seizure of power and to the preparation of World War II.944

Ullmann himself, a prominent representative of the citizens’ movement, had urged the Modrow government to ask the Soviet Union to insist on the irreversibility of Bodenreform-expropriations during the Two-Plus-FourTreaty negotiations.945 The Modrow government, says Ullmann, acted in accordance with his request.946 A further institutional reaction to, and legal manifestation of, the East Germans’ call for the protection of Bodenreform-property was the CRT’s Art. 133 (1) RTD, which had declared the Bodenreform to be “indefeasible” (“unantastbar”). The goal, according to the responsible CRT working group, had been “to preserve social peace and to secure vested social rights” of GDR citizens.947 Ulrich Preuß, a West German law professor advising the CRT, said the provision must be considered “a gesture of selfconfidence [by the East Germans], which the FRG should wisely respect.”948 The East Germans’ will regarding the Bodenreform is moreover reflected in reactions by the de Maiziere government and the first freely elected VK. De Maiziere had argued vigorously in favor of confirming the Bodenreform in order to prevent social unrest in the GDR after unification.949 Finally, the first freely-elected VK had agreed to confirm

944 945 946 947 948

Ullmann, Verfassung und Parlament, 23. Ibid. Ibid. See Rogner, 98. Preuß, Auf der Suche nach der Zivilgesellschaft, in: Guggenberg/Stein (Hrsg.), 365, 366. 949 Government Declaration Apr. 19, 1990, pp. 8, 18; BVerfG, NJW 1991, 1601; BVerfG, NJW 1996, 1669; supra, 111.

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the Bodenreform, even though it had refrained from writing that into the VGG.950 The FRG government had respected the East Germans’ will in both the Joint Declaration of June 15, 1990 and in the UT. The FRG legislature had constitutionally implemented that will with the necessary 2/3 majority in the new Art. 143 III GG. However, considerable arguments had been presented according to which Art. 143 III GG did not fit into the GG. At this point it became the BVerfG’s task to properly integrate the revolutionary achievement into the existing constitutional order under the GG. The court’s basis for integration was Art. 79 III GG. Since the revolutionary achievement of the Bodenreform’s confirmation had been manifested in a constitutional amendment (Art. 143 III GG), the question of whether or not it fit into the GG had to be examined on the basis of the GG’s most fundamental principles as listed in Art. 79 III GG. According to Art. 79 III GG, these core principles must not be affected by a constitutional amendment. Within its Art. 79 III GG examination, the court self-consciously refers to the respect that the old FRG owes to the will of the revolutionary East Germans and makes this a core argument for Art. 143 III GG’s integration into the existing constitutional order under the GG. The court argues that [i]f the unity should be realized in an orderly fashion and be accepted by the people of the GDR as a result of their self-determination, the FRG government, in the negotiations, had to take seriously the will of the first democratically elected representation of the [GDR] people and the government elected by it. To ignore their wishes would, in any case, have contradicted the respect that the FRG owed to the people in the GDR and could have considerably endangered the orderly process of reunification.951

The argument shows that the factor requiring, and thus constitutionally justifying, the Bodenreform’s confirmation was neither the GDR’s contractual bargaining power nor its ability to prevent unification. It was “the respect that the FRG owed to the people in the GDR”. Disrespect of their

950 See Protocol of the 15th Meeting of the Volkskammer on 17.06.1990, reprinted in: Fischer/Künzel (Hrsg.), Bd. II, 179 ff., petition by Abg. Holz (DBD/DFD) on p. 199, de Maiziere’s response on pp. 202 f., and finally the VK’s decision to refrain from writing the confirmation of the Bodenreform-expropriations into the VGG on p. 203; see also Schröder, 66. 951 BVerfG, NJW 1996, 1668, 1669 (my italics).

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will might have reactivated the revolutionary people and might have developed into “social dynamite of the first order” endangering German unification.952 Finally, the court activates the GG’s core principles, i.e. the social-state principle, the rule of law, and the principle of equality, in order to synthesize the East Germans’ will to confirm the Bodenreform (Time Two) with the existing constitutional order under the GG (Time One). On the basis of these core principles, the court develops a constitutional state obligation to provide for compensatory payments to former owners of Bodenreform property. This state obligation to compensate former owners of Bodenreform property, thus, functions as a means to fit the Bodenreform’s confirmation into the GG in a paradigmatic act of what, in Ackerman’s words, may be called “one-two synthesis”. II. Gender equality Another hotly debated topic during the 1989 Revolution and the process of German unification was gender equality. As I have shown in Chapter II, individual empowerment through, among others, the establishment of realsocial instead of only formal-legal equality for women had been an important constitutional achievement of the revolutionary East Germans.953 This achievement had been transferred to unified Germany through Art. 5 UT and Art. 31 (1) UT, according to which unified Germany’s legislature should further develop legislation facilitating the equal protection of men and women.954 All new state constitutions include provisions explicitly establishing an active state obligation to make gender equality a social reality.955 On this basis, in 1994 the GVK proposed, and unified Germany’s legislature adopted, a new sentence 2 to Art. 3 II GG stating that the state shall promote the actual implementation of equal rights for women and men and take steps to eliminate existing disadvantages.956

952 953 954 955

Ibid., 1669. See supra, 53 f., 83, 89, 111 f. See Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 Rn 58. See Constitutions of Brandenburg, Art. 12 III, 48 III, 2; Mecklenburg-West Pomerania, Art. 13; Saxony, Art. 8; Saxony-Anhalt, Art. 34; Thuringia, Art. 2 II; and Berlin, Art. 10 III. 956 See supra, 161.

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Interestingly, most authors’ analyses of the new Art. 3 II, 2 GG conclude that the amendment did not bring about any change. Scholz, for example, writes that the new Art. 3 II, 2 GG is only a “clarification” of what the BVerfG had already decided.957 Even the court itself, in Feuerwehrabgabe,958 calls the new Art. 3 II, 2 GG an explicit clarification of what it had already decided in Nachtarbeit in 1992. 959 Does that mean the court already knew in 1992 what the legislature would do in 1994? What exactly did the court say in 1992? In Nachtarbeit960 the court, for the first time, said that according to Art. 3 II GG, the legislature was not only authorized but constitutionally obliged to realize gender equality as a fact of social reality.961 Prior to that, e.g. in Altersruhegeld (1987), the court had only held the legislature constitutionally authorized to realize gender equality and had explicitly left open whether the government was also obliged to do so.962 So, the real change seems to have taken place in 1992: from the government’s constitutional authorization to realize gender equality to its constitutional obligation to do so. If that is the case, the question is: why did the court decide to change its approach to gender equality? And why in 1992 and not after the GG had been amended in 1994? There are authors who simply deny a change in the court’s approach to gender equality in 1992. Michael Sachs, for example, argues that the court’s statement on Art. 3 II GG in Nachtarbeit merely summarized its former holdings.963 Others, while more exact and differentiating in their reading of what the court said in 1992, still don’t provide an answer to the question of what exactly changed and why.964 My thesis is twofold: (i) the court’s approach to gender equality changed profoundly in 1992; and (ii) the reason for this change is the 1989 Revolution, its constitutional achievement with respect to gender equality,

957 Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 GG Rn 71. 958 BVerfG Beschluss v. 24.01.1995, 1 BvL 18/93, 1 BvL 5/94, 1 BvL 6/94, 1 BvL 7/94, 1 BvR 403/94, 1 BvR 569/94, BVerfGE 92, 91-122. 959 BVerfGE 92, 91, juris-version, rec. 68. 960 BVerfG Urteil v. 28.01.1992, 1 BvR 1025/82, 1 BvL 16/83, 1 BvL 10/91, BVerfGE 85, 191-214. 961 BVerfGE 85, 191, juris-version, rec. 53. 962 BVerfG Beschluss v. 28.01.1987, 1 BvR 455/82, BVerfGE 74, 163-182, juris-version, rec. 45, 46. 963 Sachs, JuS 1992, 876. 964 See Löwisch, JZ 1992, 917 f.

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and the court’s attempt to integrate this achievement into the existing constitutional order under the GG by way of IS. I will argue that, when the court decided Altersruhegeld in 1987, it was still in a position in which it could leave open the question of whether or not the state was constitutionally obliged to realize gender equality as a fact of social reality. In 1987 the court still lived in the old, strongly conservative FRG. The old FRG’s constitutional order was determined by an in principle formal-legal approach to gender equality under which authorizing the legislature to compensate women for suffered discriminations was the most progressive thing the court considered itself legitimated to do. In 1992 that was no longer the case because a profound change had taken place in 1989/1990. The peaceful 1989 Revolution had demanded, among other things, a constitutional state obligation to realize gender equality as a fact of social reality. Unified Germany’s legislature, whom Art. 5 and Art. 31 (1) UT had obliged to “further develop” the law on gender equality, was stuck in political deadlock. In this situation, it was the court who felt obliged to take on the issue. It did so in an obiter dictum in Nachtarbeit, in which it stated what it considered to be the result of the 1989 Revolution’s impact on unified Germany’s constitutional law. This explains why the court, without possessing a crystal ball, was able to say in 1992 what the legislature would add to the GG in 1994. In what follows, I will analyze the change in the court’s approach to gender equality from 1987 to 1992, expatiate on the traditional understanding of that change, in order to finally explain my own understanding. 1. The decisions: Altersruhegeld (1987) and Nachtarbeit (1992) Prior to 1987, the court’s approach to gender equality based on Art. 3 II, III GG was, as a matter of principle, a formal one.965 As long as an unequal treatment was formulated in gender-neutral terms, it was generally considered constitutional; if not, it was generally considered unconstitutional, unless objective biological or functional differences between men

965 Sacksofsky, 26 f.; Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 26 ff.; Schweizer, 110 ff.; for the few exceptions to this principle, see Sacksofsky, 95 ff. and Schweizer, 112; for an overview of adjudication and literature, see Sacksofsky, 23 ff. and 101 ff.

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and women justified the unequal treatment.966 The court later modified this formula, so that gender-based differentiations were justified if they were indispensable to solve problems that, according to their nature, could only occur either with men or women.967 Based on this formula, the court focused on making sure that the law was gender neutral. The court was, as a matter of principle, not concerned about laws that did not explicitly refer to gender but instead indirectly contributed to discriminatory results as a matter of social reality.968 Despite the interpretive rule that provisions with different texts must not be assumed to have identical meaning, both the BVerfG and most authors interpreted Art. 3 II GG as merely confirming the prohibition of gender discrimination stated in Art. 3 III GG969. Voices in the literature have been criticizing the court’s formal-legal approach to gender equality for a long time. As early as 1974, it was F.J. Säcker who argued that Art. 3 II GG in combination with the social-state clause imposed a state obligation to adopt necessary measures to make equality (Gleichberechtigung) of women a social reality.970 Karl Heinrich Friauf stated in 1981 that Art. 3 II GG, interpreted in the light of the social-state principle, obliged the state to actively further equality for women.971 However, led by Manfred Löwisch, most authors insisted that Art. 3 II GG merely stipulated formal-legal equality. 972 Accordingly, Art. 3 II GG only prohibited gender-based legal differentiations without including an order to actively promote women’s real emancipation.973 Based on this principle, many authors, still in the 1980 s, considered structural social discrimination against women, such as the unequal distribution of work in

966 That had been the standard test since BVerfGE 3, 225, 242; 52,369, 374; 63, 181, 194; 68, 384, 390; 71, 224, 229; see Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 27; Schweizer, 111. 967 Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 31. 968 Schweizer, 112; Sacksofsky, 27. 969 Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 26 and 33; Sacksofsky, 24; Schweizer, 110; Art. 3 II GG read: “Men and women shall have equal rights”; Art. 3 III GG read: “No person shall be favored or disfavored because of sex, ….”. 970 Säcker, 25. 971 Friauf, 29. 972 Löwisch, in: Verhandlungen des 50. Deutschen Juristentages, 1974, Bd. I, D 11 ff. (42); Schweizer, 116. 973 Ibid.

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the family, a purely private matter with which government must not interfere.974 The court’s view of Art. 3 II GG started to change in 1987 with Altersruhegeld. Here, for the first time, the court explicitly attributed constitutional relevance not only to legal but also to factual, social discrimination against women.975 The court examined under Art. 3 II GG a legal provision according to which women were entitled to pensions from the statutory pension insurance (gesetzliche Rentenversicherung) upon their 60 s birthday, while men needed to be older.976 The court held the provision constitutional and stated that the legislature was constitutionally authorized to compensate women in a generalizing way977 for such factual discriminations that could be traced back to biological differences.978 Such compensatory measures, the court held, could not be considered genderbased discrimination.979 Reasons that may justify women’s preferential treatment, according to the court, were social factors that typically disadvantaged women, such as women’s dual burden of child-raising and professional work, educational disadvantages, lower salaries, and fewer career opportunities. All these factors, the court argued, were typically rooted in the traditional perception that women were going to be mothers anyway.980 This perception, in the court’s view, could be traced back to women’s “function” or “potential position” as wives and mothers and, thus, to biological differences.981 Within the same decision, the court took up another question that it had not decided previously: was the legislature constitutionally not only authorized but obliged to actively generate the prerequisites for “factual gender equality” (“faktische Gleichberechtigung”)?982 The court emphasized that, so far, the principle of gender equality had mainly been applied

974 See Schweizer, 117, 118 with further references; note the similar differentiation between state and society in this argument and in the majority’s argument in Plessy v. Ferguson, 163 U.S. 537 (1896). 975 So, too, Kokott, NJW 1995, 1050, 1054; Sacksofsky, 74 ff.; Schweizer, 113; Fuchsloch, 77 ff. 976 BVerfGE 74, 163, juris-version, rec. 1. 977 That means without the need of evidence for discrimination in a specific case. 978 BVerfGE 74, 163, juris-version, rec. 46; Schweizer, 113. 979 Ibid. 980 BVerfGE 74, 163, juris-version, rec. 49. 981 Ibid. 982 Ibid., rec. 46.

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as an individual defensive right against discriminations by the state. Explicitly referring to Friauf’s 1981 study, the court pointed out that it had recently been discussed whether Art. 3 II GG also established a positive state obligation to actively promote the realization of gender equality.983 However, the court explicitly left the question open because its decision was not necessary to decide the case.984 The next time the court took up the question was in 1992 in Nachtarbeit. Again, the court did not need to decide the question in order to decide the case. This time, however, for the first time, the court nevertheless answered the question in an obiter dictum. The court stated that Art. 3 II GG’s additional content, i.e. the content that went beyond the prohibition of gender discrimination (Diskriminierungsverbot) provided by Art. 3 III GG, was “that it postulates an order for equal protection and it expands this order to apply also to social reality.”985 What exactly does that mean? Some authors argue, as I have mentioned before, that the court only summarized what it had already said in Altersruhegeld and earlier decisions.986 Others think, the court “only assigned to the legislature a set of questions and considerations to decide on”.987 If that was the case, there would be no need to explain why the court did what it did. A mere summary of what had already been said before or the assignment to the legislature of a set of questions and considerations would not require further analysis. However, I think these authors are wrong. Prior to Nachtarbeit the court had never said that Art. 3 II GG’s additional content was “an order for equal protection” (“ein Gleichberechtigungsgebot”) and an expansion of this order to apply also “to social reality”. The decisions the court cited in Nachtarbeit do not contain such statements and none of them says anything about a state obligation to actively realize gender equality as a fact

983 Ibid., rec. 45. 984 Ibid., rec. 46. 985 BVerfGE 85, 191, juris-version, rec. 53; the original reads: “Der über das Diskriminierungsverbot des Art. 3 Abs. 3 GG hinausreichende Regelungsgehalt von Art. 3 Abs. 2 GG besteht darin, daß er ein Gleichberechtigungsgebot aufstellt und dieses auch auf die gesellschaftliche Wirklichkeit erstreckt.“ 986 Sachs, JuS 1992, 876; see supra, 186; this view must be distinguished from, for example, Di Fabio’s view, according to which a “profound and systematically highly important change in the interpretation of basic rights” has occurred, but who holds this change to be deeply wrong, see Di Fabio, AöR 1997, 404, 408 ff., 441 ff. 987 Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 GG Rn 64.

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of social reality. Moreover, in a case decided later that year (Kindererziehungszeiten, decided on July 7, 1992),988 the court explicitly clarified that what it had meant in Nachtarbeit with the expression “order for equal protection” (“Gleichberechtigungsgebot”) was a constitutional state obligation to actively realize gender equality as a fact of social reality.989 It is undisputed that the court had never said that prior to Nachtarbeit.990 As regards the argument that the court did not decide on a state obligation to realize gender equality but, by way of obiter dictum, only assigned questions and considerations to the legislature,991 the decision’s text already shows that this is only partly true. To be sure, the court used an obiter dictum to establish the new state obligation, which was thus not part of the holding in the technical sense. Nonetheless, the court expressed a clear state obligation and did not merely “assign a set of questions and considerations”. This can no longer be doubted at least since the court explicitly clarified it in Erziehungszeiten.992 It can thus safely be said that in Nachtarbeit the court profoundly changed its interpretation of Art. 3 II GG by reading into it, for the first time, a state obligation to actively realize gender equality as a fact of social reality.993 The next question is: why did the court do that? Unfortunately, the court does not explain itself. It generated its obiter dictum on the new meaning of Art. 3 II GG in Nachtarbeit out of thin air. In what follows I

988 BVerfG Urteil v. 07.07.1992, 1 BvL 51/86, 1 BvL 50/87, 1 BvR 873/90, 1 BvR 761/91, BVerfGE 87, 1-48. 989 The court explicitly cited Nachtarbeit in support of a statement according to which “the clearly higher concernment of women causes the legislature’s obligation [Pflicht] emanating from Art. 3 II GG to work towards an equalization of the living conditions of women and men”, see BVerfGE 87, 1, juris-version, rec. 140 (my italics). 990 Verwaltungsgericht (VG) Bremen in 1987 had concluded from the BVerfG’s holdings that Art. 3 II GG comprised not only an individual defensive right but also an “objective value decision” (“objektive Wertentscheidung”) and an “objective value measure” (“objektiver Wertmaßstab”), respectively, see VG Bremen, NJW 1988, 3224 ff., 3225; not even the VG Bremen, however, asserted that the BVerfG had explicitly stated a constitutional obligation of the state to actively realize gender equality. 991 Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 GG Rn 64. 992 BVerGE 87, 1, juris-version, rec. 140. 993 This conclusion is shared, for example, by Schweizer, 114; and Di Fabio, AöR 1997, 408 ff., 441.

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will first present and criticize the traditional understanding of the change in order to then present my own view. 2. Traditional understanding The traditional understanding can be divided into doctrinal and judicial politics arguments. Doctrinal. The traditional doctrinal view argues that, like every basic right, Art. 3 II GG has an objective-value core, which, in connection with the social-state principle, establishes a state obligation to actively realize gender equality, not just as formal-legal equality but as a fact of social reality.994 Säcker and Friauf already presented this argument in the 1970 s and early 1980 s.995 However, regardless of what one thinks of it, it does not answer the question of why the court changed its view in 1992. If one believes in the doctrinal explanation, why did it take the court until 1992 to follow it? Why didn’t the court apply it in 1987, when it decided Altersruhegeld and had already brought up the question only to leave it open? If one does not believe in the doctrinal explanation, then why did the court bring about the change in 1992? What had happened between 1987 and 1992? Judicial Politics. One traditional judicial politics argument for the court’s change is that the change was overdue because the European Court of Justice (ECJ) and several EC Directives had been saying for a long time that the principle of gender equality authorized state measures to actively realize gender equality as a fact of social reality.996 The FRG had signed several public international law agreements that imposed obligations on signatory states to realize gender equality and adopt measures of affirmative action to make up for disadvantages suffered by women as a result of gender discrimination.997 Several EU Directives, ECJ decisions, and the EU Treaty itself have required positive state measures to make gender equality a social reality.998 Some authors argue that EU law decisively

994 995 996 997 998

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See, for example, Friauf, 28, 29. Supra, 188. See Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 20 ff.; Schweizer, 229 ff. For details, see Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 19. For details, see ibid. Rn 20 ff.

B. The BVerfG as an integrative institution

influenced the development of gender equality in the FRG.999 But again, even if one would follow this argument, the question remains: why did the court not follow these leads prior to 1992? Other authors emphasize the BVerfG’s role as a moral and political leader in the FRG. The court, the argument goes, has been an engine of gender equality in the FRG and has been far ahead of a Zeitgeist that has been dominated by traditional perceptions of gender roles.1000 Christine Hohmann-Dennhardt, for example, speculates about the reasons for the court’s moral and political leadership and examines the extent to which female justices of the BVerfG may have guided the court towards promoting gender equality.1001 Even though Hohmann-Dennhardt concedes the difficulty of determining which justice has exercised what influence in specific decisions, she still tries to show how female justices of the BVerfG have contributed to the court’s adjudication on gender equality.1002 Neither of these arguments sufficiently considers constitutional interpretation as a means to explain the court’s change in interpreting Art. 3 II GG. None of them even mentions the 1989 Revolution and its possible implications for unified Germany’s constitutional law in general and for the development of gender equality in particular. This is even more surprising in the light of the fact that two highly exceptional events in German constitutional history, the 1989 Revolution and the 1990 Unification, took place between 1987 (Altersruhegeld) and 1992 (Nachtarbeit). Pure coincidence? I want to argue otherwise. 3. My understanding: Nachtarbeit as an act of IS In 1992, the court found itself in a particular situation. In 1987, it could still afford to leave open the question of whether there was a constitutional state obligation to realize gender equality as a fact of social reality. The question had been an issue since the mid-70 s, but nothing of constitutional importance had materialized. The court had been practicing its traditional formal-legal approach to gender equality since the 1950 s, most

999 1000 1001 1002

Explicitly Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3 Rn 23. Hohmann-Dennhardt, in: van Ooyen/Möllers (Hrsg.), 257. See ibid., 257 ff. Ibid., 258 ff.

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authors had agreed, and the changes that this approach had necessitated in the field of family law had been upsetting enough for many staunch traditionalists in the old FRG. The dominant opinion in the old FRG had always been very conservative with respect to gender equality. Heated discussions and a popular movement had been necessary to get the principle of gender equality into the GG in 1949 in the first place.1003 The so-called Herrenchiemsee-Draft of the GG had not contained a provision for gender equality, and the first proposal by the Parliamentarian Council (Parlamentarischer Rat) had limited gender equality to equal political (staatsbürgerliche) rights and obligations. Massive public pressure by feminist groups and others had been necessary to force the simple statement “men and women have equal rights” (“Männer und Frauen sind gleichberechtigt”) into the GG.1004 The dominant opinion at the time had sharply distinguished between state and society and had argued that gender equality in the social sphere was none of the government’s business. Whether women should pursue professional careers or rather become housewives, the argument went, was exclusively for the family to decide. Government, according to this view, was only authorized and obliged to deal with legal and political equality. Wolfgang Abendroth writes that it took the BVerfG1005 until 1959 to enforce the application of Art. 3 II GG in the area of family law against a majority in the Bundestag and against the BGH.1006 In the light of so much resistance, the BVerfG had already taken a courageous step in 1987 by holding the legislature authorized to adopt laws that compensated women for disadvantages caused by gender discrimination. To go even further and establish a government obligation to realize gender equality as a fact of social reality did not seem viable in 1987. The situation had changed fundamentally by 1992. A successful revolution had taken place in the GDR in the fall of 1989. One of the revolutionaries’ claims had been the establishment of real gender equality through active government intervention. More generally, the principle of individual empowerment, i.e. a constitutional government obligation to actively develop a social environment in which constitutional individual rights can

1003 See Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3, Rn 5; Kokott, NJW 1995, 1050. 1004 Art. 3 II GG old version; for this and the following, see Eckertz-Höfer, in: AKGG, Art. 3 Abs. 2, 3, Rn 5; Kokott, NJW 1995, 1050. 1005 BVerfGE 10, 59, decided on 29. July 1959. 1006 See Abenroth, Das Grundgesetz, 66.

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become a social reality for everyone instead of remaining only formallegal rights, had been at the heart of the Revolution’s constitutional agenda. The citizens’ movements had emphasized the importance of women for the Revolution’s success and had demanded the adoption of real equality for women as an explicit constitutional principle.1007 The people in the streets had agreed and had expressed this agreement, for example, in a poll in which they held the GDR to be superior to the FRG when it comes to equal protection of women.1008 The GDR Constitution of 1968/1974 had guaranteed equal treatment of the sexes in all areas of social, political, and personal life and had made the advancement of women a government obligation.1009 However, when it came to social reality, women had been victims of discrimination in the GDR, too. For example, even though there had been many women with professional careers, women had been strongly underrepresented in important leadership positions in business, government, and academics.1010 Against this background, the CRT had legally manifested the people’s call for real gender equality by including in the Social Charter the equal treatment of the sexes, the comprehensive provision of day care to promote equal career opportunities, and the explicit goal of achieving equal representation of men and women in all sectors of professional life.1011 Another Social Charter measure to realize gender equality had been a woman’s right to abortion.1012 The RTD had established a government obligation to make gender equality a social reality by stating in Art. 3 (2) that the state is obliged to work towards equal treatment (Gleichstellung)1013 of women in the profession and in public life, in education and vocational training (Bil-

1007 1008 1009 1010 1011 1012 1013

See supra, 54. See supra, 70. See Eckertz-Höfer, in: AK-GG, Art. 3 Abs. 2, 3, Rn 6. See Heß, 265 with further references; Schweizer, 64. See supra, 83. Ibid. For the somewhat confusing and hairsplitting differentiation between equal rights (Gleichberechtigung) and equal treatment (Gleichstellung), see, for example, the GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 561 ff.; and Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 GG Rn 59 ff. The term “equal rights” (Gleichberechtigung) seems to be preferred by defenders of the formal-legal approach to gender equality, whereas the defenders of the concept of real-social equality seem to prefer the term “equal treatment” (Gleichstellung). The BVerfG does not ascribe different legal meaning to the terms, see BVerfGE 74, 163, juris-version, rec. 45, 46, 51.

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dung und Ausbildung), in the family and in social security (soziale Sicherung). Finally, the de Maiziere government had emphasized the importance of realizing equal treatment of women in the professional world as well as in society in general.1014 These had been clear statements demanding a constitutional government obligation to actively realize gender equality as a fact of social reality. This demand had been transferred to unified Germany by several means. Art. 5 UT had provided that unified Germany’s legislature shall deal with questions of amending the GG that had been raised by German unification. Since the question of a constitutional government obligation to realize gender equality had been viewed differently in the post-revolutionary GDR on the one hand and in the old FRG on the other, it had been an important question raised by unification.1015 Art. 5 UT had thus transferred the topic as well as the East Germans’ opinion on it to unified Germany. Art. 31 (1) UT had specified the transfer by postulating that unified Germany’s legislature must further develop the law on gender equality. Finally, all new state constitutions contained an explicit government obligation to actively realize gender equality as a fact of social reality.1016 In this situation it was no longer possible for the court in 1992 to ignore the East Germans’ will. As opposed to 1987, when the court had decided Altersruhegeld, in 1992 it was no longer only a minority opinion in the literature that argued for a constitutional government obligation to realize gender equality. The East Germans, an important part of the German people, had spoken as pouvoir constituant, and they had demanded, among other things, an active realization of gender equality. The West Germans had acknowledged this demand by signing the UT. What the BVerfG was confronted with in 1992 were no longer mere doctrinal or political arguments for a specific interpretation of Art. 3 II GG. It was a forceful revolutionary statement by an important part of the German people, which had caused institutional reactions, had found legal manifestations, and had been transferred to unified Germany. When the court decided Nachtarbeit

1014 See Government Declaration Apr. 19, 1990, p. 20; supra, 111 f. 1015 Scholz writes that the question of gender equality did not stand in “immediate relationship” with unification; still he considers Art. 5 UT to be the basis for the new Art. 3 II, 2 GG, see Scholz, in: Maunz/Dürig, Art. 3 Abs. 2 GG, Rn 58. 1016 See supra, 146 f.; see also the Constitutions of Brandenburg, Art. 12 III, 48 III, 2; Mecklenburg-West Pomerania, Art. 13; Saxony, Art. 8; Saxony-Anhalt, Art. 34; Thuringia, Art. 2 II; and Berlin, Art. 10 III.

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on January 28, 1992, a change of constitutional dimensions had taken place, and unified Germany’s institutions needed to respond to it. However, the legislature, the institution primarily in charge of integrating revolutionary achievements into the GG,1017 did not seem up to the task. Even though Art. 5 UT had provided a time frame of two years as of October 3, 1990, the GVK, which finally proposed the new Art. 3 II, 2 GG in its Report in November 1993, had merely been founded on November 28/29, 1991.1018 The Bundestag had not taken up the Kuratorium’s Draft Constitution, according to which “[t]he government is obliged to bring about and secure the equal participation of the sexes in all areas of society” (Art. 3 (2)), and “[m]easures promoting women in order to compensate them for existing disadvantages are no favoritism based on gender” (Art. 3 (4)).1019 Moreover, Art. 79 II GG required 2/3 majorities for amendments of the GG. And indeed, the legislature turned out to be unable to perform the integrative task. The Bundesrat’s Commission’s proposal of May 14, 1992 for an amended Art. 3 II GG is impressive prove of this inability. After more than one year of negotiations, the Commission’s proposal read “[w]omen and men have equal rights” as opposed to the original “[m]en and women have equal rights”.1020 Some commentators called the proposed change “ridiculous” in the light of persistent real discrimination against women in Germany.1021 It took the GVK until October 1993 to agree on a proposal for the new Art. 3 II, 2 GG, and it took the legislature until September 23, 1994 to adopt it.1022 The new Art. 3 II, 2 GG entered into force on November 15, 1994.1023 Critics still call the amendment a “formula compromise” (“Formelkompromiss”), which enables all sides to assert that it means what they want it to mean, leaving the meaning’s final determination to the court.1024

1017 1018 1019 1020 1021 1022 1023 1024

See Art. 5 UT and Art. 31 UT in general and Art. 31 (1) UT in particular. See supra, 156. Schweizer, 54, 55 with further references; Limbach/Eckertz-Höfer (Hrsg.), 21. See Bericht der Kommission Verfassungsreform des Bundesrates of May 14, 1992, in: Fischer/Künzel (Hrsg.), Bd. II, 420 ff. (444). Abg. Ulrike Mascher, in: Limbach/Eckertz-Höfer (Hrsg.), 28. See Beschluß des Bundesrates v. 23.09.1994, 834/94 (Beschluß), reprinted in: Fischer/Künzel (Hrsg.), Bd. III, 1002. See Art. 2 of the GG-amending law (BGBl I 1994, 3146). See Isensee, NJW 1993, 2583, 2585, who calls the text a “dilatorischen Formelkompromiss”; see also Schweizer, 84; and Limbach, in: Limbach/ Eckertz-Höfer (Hrsg.), 299 ff., 300.

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At the same time, the actual need for government action against discrimination against women had become increasingly urgent, particularly in the new states. While the female employment rate in the GDR prior to German unification had amounted to 91% in 1989 as opposed to only 55% in the FRG,1025 the number of employed women in the new states had decreased significantly since the summer of 1990.1026 By the end of 1992, 64.9% of 1.1 million unemployed in the new states were women.1027 Within three years, from 1990 to 1993, only about half of the households that prior to unification had had both partners employed still had both partners employed.1028 The partner still employed was usually male.1029 This development re-established traditional economic dependencies of women.1030 Finally, women in the new states had been hit particularly hard by some legal changes in the wake of German unification. For example, unified Germany’s legislature had repealed the additional consideration of times of child-raising for the acquisition of pension claims (zusätzliche Anrechung von Kindererziehungszeiten auf den Rentenanspruch), had reduced women’s rights to be excused from work to tend to sick children (Reduzierung der Freistellungsrechte der Frauen im Falle erkrankter Kinder), and had reduced the availability of day care (Verschlechterung der Möglichkeiten außerhäuslicher Betreuung von Kindern).1031 Against this background of legislative deadlock in combination with increasing dissatisfaction of the people in the new states with how their revolutionary achievements were being treated in unified Germany, the court’s obiter dictum in Nachtarbeit acquires a new meaning. When the court, for the first time in the FRG’s constitutional history, stated that “the meaning of Art. 3 II GG that goes beyond the meaning of Art. 3 III GG is that it postulates an order for equal protection and expands this order to apply also to social reality”,1032 it engaged in an attempt to integrate the revolutionary achievement of a constitutional government obligation to realize gender equality into the existing constitutional order under the GG

1025 1026 1027 1028 1029 1030 1031 1032

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Maier, Cambridge Journal of Economics 1993, 268. Ibid., 273 ff. Ibid., 274. Schweizer, 63. Ibid. Ibid. Minister Birthler (Brandenburg), in: Limbach/Eckertz-Höfer (Hrsg.), 36. BVerfGE 85, 191, juris-version, rec. 53.

B. The BVerfG as an integrative institution

by way of constitutional interpretation. Even though the court did not explicitly justify its new interpretation of Art. 3 II GG, this new interpretation bears clear signs of one-two synthesis.1033 The court takes the old Art. 3 II GG (Time One) and gives it a new meaning that reflects what the revolutionary East Germans had fought for and had successfully transferred to unified Germany (Time Two). The pattern of one-two synthesis reoccurs in succeeding decisions by the court on gender equality. For example, in Kindererziehungszeiten1034 the court held constitutional the provisions of two laws on the consideration of times of child-raising for purposes of acquiring rights in the statutory pension insurance. However, the court obliged the legislature to further improve the pension system with respect to disadvantages resulting from child-raising.1035 The provisions examined by the court allowed for the consideration of times of child-raising for purposes of acquiring rights in the statutory pension insurance only under certain restrictive conditions.1036 Based on the traditional formal-legal approach to gender equality, these conditions would not have raised issues under Art. 3 II GG1037 because they applied equally to women and men.1038 The fact that, as a matter of social reality, it were mostly women who devoted their time to child-raising and who were thus more strongly affected by the restrictive conditions (less insurance times meaning lower pensions) would not have been considered relevant under the traditional formal-legal approach to Art. 3 II GG. After 1990, however, it was no longer possible to apply the formal-legal approach. The revolutionary East Germans had clearly demanded a consti-

1033 For other examples of one-two synthesis, see supra, 22 f., 185. 1034 BVerfG, Urteil v. 07.07.1992, 1 BvL 51/86, 1 BvL 50/87, 1 BvR 873/90, 1 BvR 761/91, BVerfGE 87, 1-48. 1035 BVerfGE 87, 1, juris-version, rec. 121. 1036 For the details, see BVerfGE 87, 1 juris-version, rec. 20. 1037 I consider it a bow to the traditional formal-legal approach to equality that the court examined the provisions “primarily” (“in erster Linie”) based on Art. 3 I GG (general principle of equality) in connection with Art. 6 I GG (protection of marriage and family), see BVerfGE 87, 1, juris-version, rec. 124. The court found a discrimination of “persons who, within a family, devote themselves to child-raising” and of “the family”, see ibid., rec. 126, 128, 133. That, however, did not make the examined provisions void but instead led to the legislature’s obligation to abolish the discrimination, see ibid., rec. 133. 1038 See BVerfGE 87, 1, juris-version, rec. 5 ff. referring to §§ 1227 a RVO and 2 a AVG, which applied to “mothers and fathers” equally.

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tutional state obligation to make gender equality a social reality. Against this background, the court had to confirm its statement in Nachtarbeit, this time, however, no longer in a mere obiter dictum but as part of the holding:1039 “However, the insufficient consideration of periods of child-raising in the statutory pension insurance does in fact mainly disadvantage mothers because, to this very day, it is mostly they who take over childraising and therefore limit, suspend, or give up their professional careers.”1040 This fact, the court concludes, “causes the legislature’s obligation based on Art. 3 II GG to work towards an equalization of the living conditions for men and women”.1041 Another example of the court’s IS activity in the field of gender equality is its decision in Arbeitgeberzuschuss zum Mutterschaftsgeld1042 The court had to decide on the constitutionality of a law that obliged employers to contribute to payments for women during six weeks before and eight weeks after childbirth. During this time the law prohibited a woman from working in order to protect her and her child against “dangers of the workplace, excessive demands, and health problems”.1043 Formally, the law was non-discriminatory because the differentiation between men and women could be justified by the fact that only women can get pregnant and thus face pregnancy and childbirth-related health risks in the workplace. As a matter of social reality, however, the employers’ obligation to contribute to women’s payments during a time in which they were not allowed to work threatened to disadvantage women in the job market since employers, trying to avoid these contributions, were less likely to hire women.1044 The court itself pointed out that, in an earlier decision on the

1039 The court held the provisions constitutional but made the decision’s reasons part of the holding (“nach Maßgabe der Gründe”). 1040 BVerfGE 87, 1, juris-version, rec. 140 (my italics). 1041 See BVerfGE 87, 1, juris-version rec. 140 (my italics), where the court explicitly cites Nachtarbeit in support of this statement. The court confirms the statement in Kindererziehungszeiten II, BVerfG Beschluss v. 12.03.1996, 1 BvR 609/90, 1 BvR 692/90, BVerfGE 94, 241-267, juris-version, rec. 52. 1042 BVerfG Beschluss v. 18.11.2003, 1 BvR 302/96, BVerfGE 109, 64-96. 1043 BVerfGE 109, 64, juris-version, rec. 1 ff. 1044 Ibid., rec. 217, 218, 222 – 226; the court saw a violation of Art. 3 II GG in the fact that the obligation to contribute to an insurance (Ausgleichs- und Umlageverfahren) that would cover the expenses for women during the relevant time was limited to small enterprises. Larger enterprises did not have to participate in the insurance scheme, so that they were less likely to hire women, because their

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same topic in 1974, it had held the law’s merely indirect impact on women’s job opportunities irrelevant in terms of gender discrimination.1045 It had argued that employers were free to choose whether or not to hire women and thereby incur the legal obligation to contribute to the payments.1046 The argument exemplifies the strict separation between government and society characteristic of the formal-legal approach to gender equality in the old FRG. In 2003, however, this argument was no longer defensible because, as the court explicitly said, “the legal situation” (“die Rechtslage”) with respect to gender equality had changed.1047 Here, the court referred “in particular” to the new sentence 2 of Art. 3 II GG, added to the GG in 1994.1048 What the court referred to substantively, however, was the new constitutional government obligation to realize gender equality as a fact of social reality. But this new obligation had not been established in 1994 by the amendment of Art. 3 II GG. It had already been established by the court itself in 1992 in Nachtarbeit as a product of one-two synthesis. It is this substantive change on which the court in Arbeitgeberzuschuss zum Mutterschaftsgeld bases the legislature’s obligation to come up with a regulation that, as a matter of social reality, equalizes the chances for women and men in the job market.1049 In summary, it can be said that my IS analysis offers a new perspective on why the court developed a new approach to gender equality in 1992, at a time when the adoption of the new Art. 3 II, 2 GG was still more than two years away and very unsure. Realizing that unified Germany’s legislature was getting nowhere in its attempt to integrate revolutionary achievements on gender equality into the existing constitutional order under the GG, the court took over by interpreting Art. 3 II GG as establishing a government obligation to realize gender equality. This government obligation thus appears as a synthetic product of the 1989 revolutionaries’ call for real gender equality on the one hand and the in principle formal-legal

1045 1046 1047 1048 1049

expenses for pregnant women and mothers, respectively, would not be covered by the insurance, see ibid. BVerfGE 109, 64, juris-version, rec. 191. BVerfGE 37, 121, juris-version, rec. 23; BVerfGE 109, 64, juris-version, rec. 191. BVerfGE 109, 64, juris-version, rec. 191. Ibid. Ibid., rec. 192, 225, 231, 232.

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approach to gender equality in the old FRG on the other. This understanding of the court’s changed interpretation of Art. 3 II GG as of Nachtarbeit takes both constitutional interpretation and constitutional history more seriously. III. Abortion Abortion has been a highly controversial political and legal issue in Germany for a long time.1050 The controversy has centered on the balancing of two competing constitutional rights: (i) the unborn child’s right to life1051 and (ii) the woman’s right to self-determination. Based on this controversy, there were, prior to 1993, basically two models for the legal treatment of abortions in Germany: (i) the so-called indication model (Indikationenlösung), which emphasizes the unborn child’s right to life and (ii) the so-called time-phase model (Fristenlösung), which emphasizes the woman’s right to self-determination, at least during the first twelve weeks of her pregnancy. The indication model makes abortion a crime and only provides for exceptions if specific indications are ascertained, such as the mother’s life or health is in danger (the so-called medical indication); the pregnancy is the result of a crime, such as rape or incest (the so-called ethical indication); the unborn child is diagnosed with birth defects (the so-called eugenic indication); or the pregnant woman suffers from social and psychological conflicts that are as damaging to her as any of the other indications (the so-called social indication). The time-phase model, on the other hand, grants the pregnant woman a right to abortion during the first twelve weeks of her pregnancy under the condition that, prior to the abortion, she participates in so-called “preventive abortion counseling”.1052

1050 For an overview, see, for example, Quint, The Imperfect Union, 154 ff.; Kommers, BYU L. Rev. 371, 391 ff. (1985); Kommers, The Constitutional Jurisprudence Of The Federal Republic Of Germany, 335 ff.; Schönke/Schröder – Eser, Vorb. vor § 218 StGB. 1051 For an explanation of this concept, see Kommers, BYU L. Rev. 371, 393 ff. (1985). 1052 That the woman has a right to an abortion during the first twelve weeks of the pregnancy is the time-phase model’s characteristic criterion. This is its main difference compared to the court’s counseling model, under which the woman, during the first twelve weeks of a pregnancy, does not have a right to an abor-

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In 1975, in Abortion I,1053 the BVerfG repudiated an attempt by the SPD/FDP government to introduce a time-phase model in the FRG. The court declared the adopted time-phase model unconstitutional and argued that it did not provide for an effective protection of the unborn child. Based on the GG, the court argued, criminal punishment of abortion throughout the entire pregnancy was necessary to effectively protect the unborn child.1054 In 1993, in Abortion II,1055 the court changed its mind. After unified Germany’s legislature, in an attempt to fulfill its obligation under Art. 31 (4) UT, had adopted another time-phase model in an act dating from July 27, 1992,1056 the court declared that during the first twelve weeks of the pregnancy criminal punishment of abortion was no longer required by the GG to effectively protect the unborn child. Instead, the court now held a specified model of counseling to be sufficient.1057 Again, the question is: how can this change be explained? As in the previous cases, there are authors who simply deny any change. Other authors provide the typical doctrinal explanations of judicial restraint and defer-

1053 1054

1055 1056 1057

tion but is only free from criminal punishment if she has an abortion. „Preventive abortion counseling“ means that the woman is „instructed about the public and private assistance available for pregnant women, for mothers, and children, especially such assistance that facilitates the continuation of the pregnancy and eases the conditions of mother and child“. In addition, the woman must be counseled on the medical aspects of an abortion by a physician, see § 218 c (1) of the Abortion Reform Act of June 18, 1974 (5. Strafrechtsreformgesetz v. 18.06.1974, BGBl I 1974, 1297 – 1300). BVerfG, Urteil v. 25.02.1975, 1 BvF 1-6/74, NJW 1975, 573 ff. See BVerfG, NJW 1975, 579: “Durch die völlige Aufhebung der Strafbarkeit ist jedoch eine Schutzlücke entstanden, welche die Sicherung des sich entwickelnden Lebens in einer nicht geringen Anzahl von Fällen gänzlich beseitigt” and 581: “Jedoch vermögen weder die gegenwärtig angebotenen und gewährten Hilfen dieser Art noch die im 5. StrRG [Strafrechtsreformgesetz] vorgesehene Beratung den individuellen Lebensschutz zu ersetzen, den eine Strafnorm grundsätzlich auch heute noch in den Fällen gewährt, in denen für den Abbruch einer Schwangerschaft kein nach der Wertordnung des Grundgesetzes achtenswerter Grund besteht“ and “Er [der Gesetzgeber] muß vielmehr den ernsthaften Versuch unternehmen, durch eine Differenzierung der Strafandrohung einen wirksameren Lebensschutz … zu erreichen“. BVerfG, Urteil v. 28.05.1993, 2 BvF 2/90, 2 BvF 4/92, 2 BvF 5/92, NJW 1993, 1751 ff. Art. 13 Schwangeren- und Familienhilfegesetz of 27.07.1992 (BGBl I 1992, 1398) amended §§ 218 ff. StGB. See BVerfG, NJW 1993, 1756 ff.

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ence to the legislature’s decisions. Again others think of the change as a product of judicial politics trying to strike a compromise between the GDR’s and the FRG’s legal abortion models. Finally, there are authors who think the court’s opinion is simply paradoxical and wrong. Again, I want to offer a new explanation. Putting Abortion II into historical perspective, I will show that it should be understood as the court’s attempt to synthesize the revolutionary constitutional achievement of individual empowerment (Time Two) with the traditional West German emphasis on the protection of the unborn child, the social function of criminal law, and the traditional role of women in society (Time One). In what follows, I will first elaborate on the similarities and fundamental differences between the court’s constitutional treatment of abortion in 1975 on the one hand and in 1993 on the other. I will then outline the traditional understanding of Abortion II and show why the traditional view is not convincing. Finally, I will present my own understanding of Abortion II as the court’s attempt to synthesize revolutionary achievements with traditional West German constitutional concepts. 1. The decision: Abortion II (1993) In Abortion II the court decided on the constitutionality of a new law on abortion adopted in July 1992.1058 The new law was the legislature’s response to Art. 31 (4) UT, which had made it “the task of unified Germany’s legislature, by December 31, 1992 the latest, to adopt a law that better provides for the protection of the unborn life and for the support of pregnant women …”.1059 The law introduced a time-phase model, i.e. it declared abortions undertaken during the first twelve weeks of the pregnancy “not illegal” (“nicht rechtswidrig”) if the woman had participated in specified counseling prior to the abortion. The court held § 218 a Abs. 1 StGB of the new law unconstitutional arguing that the GG does not permit to declare “not illegal” abortions undertaken during the first twelve weeks of the pregnancy under the stated requirements. The court, moreover, held

1058 The law’s official name is “Gesetz zum Schutz des vorgeburtlichen/werdenden Lebens, zur Förderung einer kinderfreundlicheren Gesellschaft, für Hilfen im Schwangerschaftskonflikt und zur Regelung des Schwangerschaftsabbruchs (Schwangeren- und Familienhilfegesetz) v. 27.07.1992 (BGBl I 1992, 1398). 1059 See supra, 139.

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the specific regulation of the counseling in violation of the GG.1060 Finally, the court issued an enforcement order (Vollstreckungsanordnung) entering its own counseling model into force for the time the legislature would need to come up with a new law that complied with the GG.1061 The enforcement order prevented the continued application of the GDR’s time phase model in the new states based on Art. 31 (4) last sentence UT.1062 Analytically, Abortion II can be divided into two parts: part 1 confirming principles established in Abortion I and part 2 developing a new approach. In part 1 the court confirms the following basic positions of Abortion I: A fetus is an “unborn human life” that possesses human dignity and has an own right to life. This right must be protected by the government against dangers emanating from other individuals, including the mother.1063 Effective protection of the fetus requires the legislature to establish, as a matter of principle, the mother’s legal obligation to carry the child to term.1064 This legal obligation may only be suspended in exceptional cases in which compliance with the obligation must be deemed “intolerable” (“unzumutbar”). These are cases in which the aforementioned medical, ethical, eugenic, or social indications are present.1065 Criminal law functions as an ultima ratio to prevent conduct that is so harmful that its prevention is particularly urgent. Therefore, the criminalization of abortion, regularly, is the right means to establish the woman’s legal obligation to carry the child to term.1066 However, the criminalization of abortion is not required if and to the extent to which other, less invasive, means are capable of providing constitutionally sufficient protection of the unborn life. In that case it may suffice to express the woman’s general obligation to carry the child to term by legal means other than criminal law.1067 In part 2 the court develops principles for how the state may discharge its constitutional obligation to protect the unborn child. These principles

1060 1061 1062 1063 1064 1065 1066 1067

BVerfG, NJW 1993, 1752. Ibid., 1752, 1773, 1774. See supra, 139; see also Breuer, in: Ipsen (Hrsg.), 39. BVerfG, NJW 1993, 1753. Ibid., 1753, 1754. Ibid., 1754. Ibid., 1754, 1755. Ibid., 1755.

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manifest a fundamental shift in the court’s constitutional concept of unborn-child protection as compared to 1975. Conceptionally, there is a shift from repression of abortion through criminalization to prevention of abortion through combining a timely limited freedom to have an abortion with abortion counseling. Moreover, there is a shift from a concept of imposition that tried to force the woman to carry the child to term to a concept of empowerment that tries to motivate the woman to carry the child to term by providing her support. In what follows I will summarize these concepts’ characteristics and fundamental differences. From repression to prevention. In Abortion I the court held that even though criminal punishment was the legislature’s sharpest sword and must only be applied as ultima ratio it was constitutionally required to prevent abortions. In the court’s view, it was uncertain whether other, less invasive means, such as the time-phase model, would be at least equally effective in protecting the unborn child.1068 Even though criminal law’s effectiveness in protecting the unborn child was equally unproven and it was “generally acknowledged” that criminal law as applied until 1975 had not been sufficiently effective,1069 the court nevertheless insisted on the criminalization of abortion. It argued that the existing empirical information did not allow for a definite conclusion regarding the time-phase model’s effectiveness in reducing the number of abortions.1070 In this situation, the court said, the importance of the child’s right to life required the strongest measure of protection and did not allow for experiments.1071 The legislature, already in 1975, had argued that a time-phase model in combination with preventive counseling would be more effective in protecting the unborn child than criminal punishment. The threat of criminal punishment, the argument went, drives women into illegality and thus keeps them from participating in preventive counseling that would protect the unborn child.1072 Already in 1975, the dissenting justices Wiltraut Rupp-v. Brünneck and Helmut Simon argued that the time-phase model must be 1068 BVerfG, NJW 1975, 577, 578, 580, 584. 1069 Ibid., 578; the original reads: “Es ist allgemein anerkannt, dass der bisherige § 218 StGB, gerade weil er für nahezu alle Fälle des Schwangerschaftsabbruchs undifferenzierte Strafe androhte, das sich entwickelnde Leben im Ergebnis nur unzureichend geschützt hat“, see ibid., D. II. on p. 578. 1070 BVerfG, NJW 1975, 580. 1071 Ibid.; the original reads: “Experimente sind aber bei dem hohen Wert des zu schützenden Rechtsgutes nicht zulässig.“ 1072 BVerfG, NJW 1975, 578.

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held constitutional unless it was proven to be ineffective in protecting the unborn child. They held it a violation of the principle of proportionality to insist on criminal punishment of abortion unless it was proven that criminal punishment, i.e. the ultima ratio, was able and necessary to protect the unborn child.1073 However, the court’s majority in 1975 decided to “reverse the burden of proof”1074 and required the legislature to prove that its time-phase model was “at least” as effective as, or even more effective than, criminal punishment in protecting the unborn child.1075 Since the legislature was unable to prove that, the time-phase model was held unconstitutional.1076 The court thus insisted on criminal law as a means to repress abortions. This approach changed fundamentally in Abortion II. In Abortion II, the court declared a concept constitutional that renounced the criminalization of abortions undertaken during the first twelve weeks of the pregnancy after specific preventive counseling (the court calls it the “counseling model” (“Beratungskonzept”)).1077 The court justified this with the argument that it appeared defensible that the counseling model provided effective protection of the unborn child.1078 Even though the model’s actual effectiveness remained unproven (as it had been in 1975), the court, this time, held it nonetheless constitutional. It thereby just dropped the Abortion I requirement according to which the legislature had to prove the counseling model’s effectiveness in protecting the unborn child. It was undisputed that the indication model as it had been applied so far had not been effective.1079 However, that had been the case in 1975, too.1080 Still, in 1975 the court had stated that “[i]t is constitutionally unobjectionable

1073 1074 1075 1076 1077 1078

Ibid., 584. Ibid. Ibid. Ibid., 578, 580, 581. See, for example, BVerfG, NJW 1993, 1757 f. BVerfG, NJW 1993, 1756, 1757; on p. 1756 the court argues that it examines whether the legislature’s prognosis that its concept of protection is sufficiently effective is “defensible” (“vertretbar”); on p. 1757 the court states that the legislature’s “appraisal” according to which the state has a better chance to protect the unborn child if it cooperates with the mother “appears justified” (“lassen die Einschätzung berechtigt erscheinen”). 1079 BVerfG, NJW 1993, 1757. 1080 BVerfG, NJW 1975, 578: “It is generally acknowledged that the previous § 218 StGB … has in the end only insufficiently protected the developing life.”

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and must be accepted if the legislature tries to comply with its obligation to provide a better protection of unborn life through preventive measures, including a counseling that strengthens the woman’s own responsibility.”1081 That sounded fundamentally different in 1993: It is, however, controversial, scientifically as well as politically, whether a counseling model for abortions in the early phase of the pregnancy provides a better protection for the unborn life than the previous regulation [i.e., the previous indication model] …. In the face of the demonstrated reasons that speak against the continuation of the previous indication model, however, such uncertainties do not prevent the legislature, as a matter of principle, from introducing a counseling model.1082

Had the court stuck to its 1975 principles, it would have had to conclude that, because of the remaining uncertainties regarding the counseling model’s effectiveness, criminal punishment was still constitutionally required.1083 But the court did not. In 1993 the court was content with the fact that the legislature’s assessment of the counseling model’s effectiveness was “defensible” (“vertretbar”).1084 The court, thus, allowed for a conceptual shift from the criminal repression of abortions to the prevention of abortions through counseling. From imposition to empowerment. Another striking difference between Abortion I and Abortion II lies in the court’s psychological and sociological concepts of protecting the unborn child. Abortion I stands for an authoritarian imposition of a traditional mother role upon women by threatening with criminal punishment in case of non-compliance. Abortion II, while still holding on to a legal obligation to carry the child to term, emphasizes a concept of empowering the woman to decide in favor of the child. It does so by respecting the woman’s decision to have an abortion during the first twelve weeks of her pregnancy after counseling and at the

1081 BVerfG, NJW 1975, 578 (my italics). 1082 BVerfG, NJW 1993, 1757 (my italics). 1083 In 1975 the court held that the legislature may only refrain from criminal punishment of abortion if another legal sanction would be at its disposal that would prevent abortions as effectively as criminal punishment, see BVerfG, NJW 1975, 577, 578. 1084 BVerfG, NJW 1993, 1756; the original reads: “… die verfassungsrechtliche Prüfung erstreckt sich … darauf, ob der Gesetzgeber … seinen Einschätzungsspielraum ‘in vertretbarer Weise‘ gehandhabt hat.“

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same time supporting her, through social help and counseling, in making a responsible decision in favor of the child.1085 In both decisions, the court stated a theoretical priority of empowerment over imposition, i.e. of social support over criminal punishment.1086 However, the court’s elaborations on active governmental support in Abortion I were cursory, at best. After stating that the government must “primarily” apply “social-political and welfare means” to protect the child,1087 the court revealed that the goal of such means was not to empower the woman to make a responsible decision in favor of the child but to impose upon her the conviction that it was her duty to carry the child to term: “The main goal will be to strengthen the future mother’s willingness to … accept her pregnancy and to carry the child to term.”1088 “To reawaken the mother’s willingness to protect the child … and if necessary to strengthen it should be the premier goal of the state’s efforts to protect life.”1089 The court considered social support as slow and ineffective in shaping the woman’s attitude while it emphasized the effectiveness of criminal punishment in shaping social perceptions and protecting the unborn life.1090 While the court cursorily addressed the need to inform about how to prevent unwanted pregnancies and how to get access to effective social support,1091 it emphasized what it apparently considered to be the real problem: “There are many women … who do not suffer from economic plight or a serious conflict. They reject their pregnancy because they are not willing to endure the encompassing hardship and to accept the natural motherly duties.”1092 The most effective means to correct such attitudes was, according to the court, the threat with criminal punishment because “…

1085 Breuer writes that the state must act “cooperatively and persuasively” with respect to the participants in the conflict, see Breuer, in: Ipsen (Hrsg.), 48. 1086 See BVerfG, NJW 1975, 576. 1087 Ibid.; the original reads: “Es ist daher Aufgabe des Staates, in erster Linie sozialpolitische und fürsorgerische Mittel zur Sicherung des werdenden Lebens einzusetzen.“ 1088 Ibid.; the original reads: “Dabei wird es hauptsächlich darauf ankommen, die Bereitschaft der werdenden Mutter zu stärken, die Schwangerschaft … anzunehmen und die Leibesfrucht zum vollen Leben zu bringen.“ 1089 Ibid.; the original reads: “Den mütterlichen Schutzwillen … wieder zu wecken und erforderlichenfalls zu stärken sollte das vornehmste Ziel der staatlichen Bemühungen um Lebensschutz sein.“ 1090 BVerfG, NJW 1975, 576 f., 579. 1091 Ibid., 581. 1092 BVerfG, NJW 1975, 579 (my italics).

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already the pure existence of such a threat … has an effect on the peoples’ perception of values and on their conduct.”1093 These arguments reflect the court’s perception of a government that imposes a traditional role upon pregnant women and tries to enforce this role by threatening with criminal punishment in case of non-compliance. That changed fundamentally in Abortion II. To be sure, the court held on to the pregnant woman’s legal obligation to carry the child to term. However, in order to achieve compliance with this obligation, the court allowed the legislature to refrain from threats with criminal punishment during the first twelve weeks of the pregnancy and instead to respect the woman’s decision to have an abortion during that time. The court further wanted to empower the woman to make a responsible decision in favor of the child by obliging the government to actively generate a social environment that encourages the woman to carry the child to term. The court emphasizes that the government must protect the unborn child not only against dangers emanating from other people but must also “stand up to such dangers … that are rooted in the actual and foreseeable real circumstances of the life of the woman and her family ….”1094 Where Abortion I laconically referred to the insight that it was the government’s foremost obligation to prevent abortions by way of information and effective social support,1095 Abortion II elaborates in great detail on an active government obligation to make sure that abortions are not undertaken because of an “economic emergency”.1096 For example, the court argues that the government must prevent disadvantages that women may suffer as a result of pregnancy with respect to vocational training and professional development.1097 The government must look into the reasons that may impede the situation of pregnant women or mothers and must make an effort to repeal or alleviate such difficulties. The government must actively promote a child-friendly society through, among other things, appropriate regulation of employment, landlord-tenant relationships, and pensions.1098 With respect to the latter, the court explicitly refers to Kindererziehungs-

1093 1094 1095 1096 1097 1098

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Ibid. BVerfG, NJW 1993, 1755 (my italics). BVerfG, NJW 1975, 581. BVerfG, NJW 1993, 1755. Ibid. Ibid.

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zeiten.1099 Finally, the court gives the legislature detailed instructions on how to regulate abortion counseling.1100 These elements reflect a concept of empowering the woman to decide in favor of the child. 2. Traditional understanding There is a multitude of different opinions on what the court said in Abortion II and on how that is different from what it had said in Abortion I. The least convincing of these opinions is Alec Stone Sweet’s, who simply denies a change in the court’s constitutional abortion requirements from 1975 to 1993. According to Stone Sweet, the BVerfG in 1993 essentially upheld its 1975 ruling.1101 Other, more differentiated, opinions may be characterized either as doctrinal or in terms of judicial politics. Doctrinal. Some approve of Abortion II as a return to the principle of judicial restraint. They argue that, where the court in 1975 had put itself in the place of the legislature by insisting on a criminalization of abortion, in 1993 it deferred to the legislature’s basic decision to forego criminal punishment during the first twelve weeks of the pregnancy after counseling as an in principle effective means to protect the unborn child.1102 Others criticize Abortion II for a lack of judicial restraint, arguing that the court’s detailed prescriptions, in particular with respect to counseling, are a “usurpation” of the legislative function.1103 Judicial Politics. Still others understand Abortion II as an act of judicial politics. Quint, for example, views the court’s counseling model as a political compromise between the FRG’s indication model on the one hand and the GDR’s time-phase model on the other.1104 Some authors imply that the

1099 1100 1101 1102

Ibid. Ibid., 1760 ff. Stone Sweet, 112. For the argument, see Rupp-v. Brünneck and Simon dissenting in Abortion I, NJW 1975, 582, 583. 1103 See Schneider, NJW 1994, 2591. 1104 Quint, The Imperfect Union, 159 ff., 163 ff.; Quint concludes that “the underlying result of the parliamentary legislation – as modified by the Court’s decision – is actually closer to what might have been expected in a new constitution, adopting certain ideas from east and west under article 146 …. In the end … the east kept a remnant of its own position on this matter – a view derived from the

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court surrendered to the Zeitgeist,1105 while others complain that the court did not sufficiently consider GDR positions in the compromise.1106 Finally, there are authors who are mainly confused by the court’s decision and describe it as contradictory and paradoxical.1107 This criticism is reflected in the statement that “the majority opinion, at the end of the day, prohibits an act and declares it illegal but at the same time allows it and regulates it legally.”1108 I think none of these explanations are satisfactory. Stone Sweet’s approach can be rejected offhand because it simply ignores the described fundamental changes from Abortion I to Abortion II. Whatever authors think of the decisions’ details, there is one crucial point that, as far as I can see, nobody else in the literature denies: prior to Abortion II the court had insisted on criminal punishment of abortion throughout the pregnancy as part of the indication model; as of Abortion II the court has accepted a socalled counseling model according to which women can have an abortion during the first twelve weeks of the pregnancy after preventive counseling without being threatened with criminal punishment.1109 If that does not count for a fundamental change, I don’t know what does.

1105 1106

1107 1108 1109

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old regime but also endorsed in the Round Table’s draft constitution”, see ibid., 164, 165; similarly Breuer, in: Ipsen (Hrsg.), 47. See Geiger, 33 ff.; and Faller, in: FAZ v. 08.06.1993, 12. Gradke, NJ 1993, 347, 348 criticizes that “the exclusive basis for the court’s deductions is the old states’ indication model” and that the court doesn’t take the GDR’s model, described as “time-phase model with support concept” (“Fristenlösung mit Hilfskonzept”), into consideration. Moreover, in Gradke’s view, the court does not consider that under the GDR law the number of abortions had decreased since the 1980 s and that the birth rates in the GDR have always been higher than in the FRG, see Gradke, NJ 1993, 348. Gradke argues that the court’s new concept is a limitation of liberty and self-determination for women in the former GDR, who had been hoping for more freedom as a result of unification, see ibid. Frommel, KJ 1993, 327, 329. Gradke, NJ 1993, 347. Except for Stone Sweet, most authors seem to recognize this fundamental difference between Abortion I and Abortion II, see, for example, Starck, JZ 1993, 818, who writes that the court’s holding in 1993 reflects the general acceptance of the time-phase model as the new model of protecting the unborn child; or Frommel, KJ 1993, 330, who writes, “In terms of criminal law, there is a timephase model in the form of the so-called counseling model in force since July 16, 1993”; Breuer, in: Ipsen (Hrsg.), 45 f. calls Abortion II a “paradigm change” (“Paradigmenwechsel”) and a “changed adjudication” (“gewandelte Recht-

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The arguments for or against judicial deference are inconclusive because they only emphasize different aspects of the court’s Abortion II decision. As a matter of fact, the court partly deferred to the legislature and partly did not. It deferred to the legislature’s general decision to replace criminal punishment with social support and counseling during the first twelve weeks of the pregnancy. At the same time, it declared the legislature’s specific implementation of the new model unconstitutional and, at great length and in great detail, developed an own counseling model and entered it into force for the time until the legislature came up with a model that complied with the constitutional requirements as interpreted by the court. Finally, characterizing Abortion II as an act of judicial politics that, more or less successfully, compromises between West German and East German positions on abortion gives up too easily on the possibility of explaining the changes in the court’s view of abortion in terms of constitutional interpretation. And this is what I want to do next: explain the conceptual changes from Abortion I to Abortion II in terms of constitutional interpretation that takes seriously the 1989 Revolution and its constitutional achievements as transferred to unified Germany. 3. My understanding: Abortion II as an act of IS My thesis is that Abortion II, just like the other decisions that I have analyzed so far, is better, i.e. more realistically and meaningfully, understood as an act of constitutional interpretation in the sense of intergenerational synthesis (IS). The court, confronted with a legislature that had failed to properly integrate into the existing constitutional order under the GG the 1989 Revolution’s achievements regarding abortion, took over the integrative task and developed its own counseling model as a product of one-two sprechung”); see also the court itself, who writes in BVerfGE 98, 265, 302 about a change “… from criminal law as a governmental reaction to abortions to a concept of protection through counseling safeguarded by criminal law” (“… vom Strafrecht als staatlicher Reaktion auf Schwangerschaftsabbrüche zu einem strafrechtlich abgesicherten Konzept des Schutzes durch Beratung”); Quint, The Imperfect Union, 160 writes: “… in a very significant theoretical shift, the court for the first time moved away from a general requirement for the criminal penalization of abortion” (my italics).

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synthesis. I will develop my thesis by first outlining the constitutional approaches to abortion of the pre-unification GG (Time One) on the one hand and of the 1989 Revolution (Time Two) on the other. I will then explain Abortion II as the court’s attempt to integrate revolutionary achievements into the existing constitutional order under the GG. Time One. Abortion I (1975) clearly stands for the old FRG’s constitutional approach to abortion. Its characteristics were repression and imposition.1110 It emphasized the constitutional protection of the unborn child and tried to achieve it by requiring the repression of abortions through threats with criminal punishment. Where this concept included governmental support for women as a means to protect the unborn child, this means was of subordinate and limited importance, as can be seen in the brevity with which the court mentioned it.1111 The concept saw the government as imposing a traditional role upon pregnant women and as enforcing this role by threatening with criminal punishment.1112 Time Two. One of the 1989 Revolution’s constitutional achievements is the principle of individual empowerment, which comprises of (i) a constitutional government obligation to establish a social environment in which constitutional rights can become a social reality for everyone; (ii) the promotion of real-social (as opposed to only formal-legal) equality for women, particularly with respect to professional life; and (iii) a woman’s right to abortion. With respect to abortion, the principle of individual empowerment aims at preventing abortions by empowering women through governmental support, counseling, and the liberty, during the first twelve weeks of the pregnancy, to make a free and responsible decision for or against the unborn child. During this early period of the pregnancy, individual empowerment’s clear emphasis is on the woman’s right to selfdetermination, not on the protection of the unborn child. A woman’s right to abortion was an important demand by the people in the streets, expressed in chants, such as “Hätte Frau Marx abgetrieben, wär uns viel erspart geblieben”.1113 This demand found its legal manifestation in both the Social Charter and the RTD. The Social Charter granted women a right

1110 1111 1112 1113

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See supra, 206 ff., 208 ff. See BVerfG, NJW 1975, 576; supra, 209. See supra, 208 ff. “If Mrs. Marx had had an abortion we would have been spared a lot”, quoted in: Tetzner, 132.

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to abortion.1114 Art. 4 (3) RTD gave women the right to a self-determined pregnancy and obliged the government to protect the unborn child by providing social support. The de Maiziere government emphasized the necessity of economic and moral support, particularly for women, in order to protect the unborn child.1115 Moreover, in direct response to the people in the streets, the de Maiziere government decided to preserve the GDR’s time-phase model instead of taking over the FRG’s indication model.1116 The UT transferred these achievements to unified Germany. Art. 31 (4) UT obliged unified Germany’s legislature to improve the legal protection of the unborn child “particularly through legally guaranteed claims for women, particularly to counseling and social help”.1117 It underlined the importance of the task by stating that the GDR’s abortion law would remain in force in the new states until unified Germany’s legislature would come up with an improved concept. Abortion II as an act of one-two synthesis. Abortion II must be understood as synthesizing several principles: (i) Time One’s emphasis on the protection of the unborn child with Time Two’s emphasis on the woman’s right to self-determination; (ii) Time One’s concept of repressing abortions through criminal punishment with Time Two’s concept of preventing abortions through governmental support and counseling; and (iii) Time One’s authoritarian imposition of a traditional role upon women with Time Two’s principle of individual empowerment through active governmental support. (i) Abortion II holds on to the pregnant woman’s legal obligation to carry the child to term, so that abortions remain illegal throughout the entire pregnancy. Hence, the court had to hold unconstitutional the legislature’s attempt to declare abortions undertaken within the first twelve weeks of the pregnancy “not illegal” (“nicht rechtswidrig”). I consider this the result of the court’s attempt to synthesize Time One’s emphasis on the unborn child’s right to life with Time Two’s emphasis on the woman’s right to self-determination. Trying to harmonize these two conflicting constitutional positions, the court argues that the unborn child’s right to life prevents the typical ba–

1114 See supra, 83. 1115 See Government Declaration Apr. 19, 1990, p. 19; supra, 111 f. 1116 See supra, 112; for a brief summary of the GDR’s time-phase model, see Breuer, in: Ipsen (Hrsg.), 34. 1117 My italics.

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lancing in which each legal position gives way a little.1118 It is impossible to gradually reduce or temporarily suspend the right to life because a reduction or suspension of that right necessarily means the individual life’s complete destruction. With respect to the individual unborn life, it is always all or nothing.1119 This is why the court holds it “impossible to find a balance that protects the unborn life and at the same time grants the pregnant woman a right to abortion, because abortion is always killing the unborn life.”1120 Against this background the court holds it impossible to let the woman’s right to self-determination prevail over the unborn’s right to life even for a limited period of time.1121 Therefore, the court is only willing to grant a right to abortion in cases in which carrying the child to term is intolerable.1122 These are the cases in which the aforementioned indications are present.1123 Whatever one thinks of the validity of these arguments,1124 they clearly show the court’s self-conscious effort to harmonize Time One’s emphasis on the protection of the unborn life with Time Two’s emphasis on the protection of the woman’s right to self-determination. That, as a result of this act of synthesis, the Time Two principle had to step back because the court found it impossible to compromise the unborn’s right to life is no evidence to the contrary. It must rather be seen in the light of the fact that the right to life is protected, inter alia, by Art. 1 I, 1 GG (human dignity), the GG’s most important principle. (ii) While the unborn child’s right to life cannot be subject to proportional balancing with the woman’s right to self-determination, the court has always recognized a higher degree of flexibility when it comes to devising the means with which to protect the right to life. Based on Time One’s concept of repressing abortions through criminal law, the court in 1975 insisted on criminal law as the only effective means of protecting the unborn life (indication model). The 1989 Revolution has favored a different concept. Based on the principle of individual empowerment, it has pro1118 In German constitutional law this is known as the establishment of “practical concordance“ (“praktische Konkordanz“), see Hesse, Grundzüge Rn 317 ff. 1119 BVerfG, NJW 1993, 1754. 1120 Ibid. (my italics). 1121 Ibid. 1122 Ibid. 1123 Ibid. 1124 For a critique, see, for example, the dissenters Mahrenholz and Sommer in: BVerfG, NJW 1993, 1774 ff.

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moted a woman’s right to abortion during the first twelve weeks of her pregnancy in combination with social support and counseling to enable the woman to make a responsible decision (time-phase model). In Abortion II the court takes up both concepts and tries to harmonize them by replacing, during the first twelve weeks of the pregnancy, the concept of criminal punishment with the concept of counseling, however, without granting a right to abortion, except in cases in which an indication is present. The court itself explains this new “counseling model” as a product of one-two synthesis by self-consciously putting it into historical perspective and explicitly referring to both the UT and the will of the revolutionary East Germans in order to justify it: [A] new regulation of the questions related to abortion has been prompted by Art. 31 IV UT;1125 [i]n favor of the counseling model unified Germany’s legislature may argue that it may appear to be better suited to bring together the eastern and western legal orders that had so far been characterized by a time-phase model on the one hand and an indication model on the other, as well as the different legal perceptions of the people that have been shaped in different ways by these two different concepts.1126

This language shows that the court not just engages in judicial politics. It tries to harmonize two different legal concepts from two different eras of German constitutional history. (iii) Finally, the court’s shift from a concept of imposing upon women a traditional role by threatening with criminal punishment to a concept of empowering women to make a responsible decision, preferably in favor of carrying the child to term, is also best understood as a product of one-two synthesis. In 1975, the court had insisted on criminalizing abortions as the most effective means to shape people’s attitudes and to convince women to accept their “natural motherly duties”.1127 In 1993, after an important part of the German people had successfully fought for the principle of individual empowerment in the 1989 Revolution and this principle had been transferred to unified Germany by West Germans signing the UT, imposition by criminalization was no longer feasible. To be sure, the unborn child’s right to life still required protection and could not be compromised. However, in the light of the revolutionary principle of individ-

1125 BVerfG, NJW 1993, 1756. 1126 Ibid. (my italics). 1127 See supra, 209 f.

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ual empowerment, women’s social reality, including their psychological and economic reality, needed to be considered more strongly. This is reflected, for instance, in the court’s arguments supporting the counseling model: “the woman experiences her conflict as a personal one and refuses an appraisal by third parties”;1128 “[t]he more third parties are trying to influence the woman, the more she withdraws into illegality”;1129 and “giving the woman the final say [“die Letztverantwortung”] provides the best chances to open her up for counseling” and thus for carrying the child to term.1130 It is also expressed in the court’s insightful reflections on the requirements that counseling must fulfill. It must be goal-oriented (towards protecting the unborn child), but open as to the result; encouraging, but not intimidating; awakening understanding, but not indoctrinating.1131 The government must convey to the woman her legal duty to carry the child to term but must not do so by imposing this value upon her but by taking her and her conflict seriously and by trying to convince her through reasonable information and active help.1132 Finally, the court clearly refers to individual empowerment by explicitly putting the government in charge of building a child-friendly society; realizing equality for women, particularly in the workplace; and providing women with the social support necessary to make a free and responsible decision in favor of the child. The court’s “changed perception [in Abortion II] of the personality and dignity of the woman”1133 strongly reflects the principle of individual empowerment, a constitutional achievement of the 1989 Revolution. Against this background, I think the IS analysis draws a much more realistic and meaningful picture than the traditional understanding of why the court changed the concept for protecting the unborn child in 1993. It shows that the court engaged in an interpretive effort that takes the achievements of the 1989 Revolution seriously and tries to integrate them into the existing constitutional order under the GG.

1128 1129 1130 1131 1132 1133

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BVerfG, NJW 1993, 1756. Ibid. Ibid., 1757. Ibid., 1760, 1761. Ibid. See the dissenters Mahrenholz and Sommer in BVerfG, NJW 1993, 1774.

B. The BVerfG as an integrative institution

II. Housing It is finally a decision by the BVerfG on May 26, 1993 that features another remarkable change in the court’s treatment of an important constitutional topic in the wake of German unification.1134 In this decision the court, for the first time, considers a tenant’s right of ownership in the rented apartment (“Besitzrecht des Mieters an der gemieteten Wohung”) property in the sense of Art. 14 I, 1 GG.1135 It thereby elevates the tenant to the same level of constitutional protection under Art. 14 GG as the landlord. Prior to the decision, the tenant’s protection under Art. 14 GG had been weaker than the landlord’s because only the landlord had enjoyed property protection, while the tenant was only protected by the landlord’s property’s social obligation under Art. 14 II GG.1136 Like the decisions on gender equality and abortion, the decision on tenant protection came at a time when unified Germany’s legislature proved itself unable to integrate revolutionary achievements into the existing constitutional order under the GG. Bernd Rüthers, for example, writes that just when the GVK had turned out to be unable to agree on proposing a constitutional right to housing as an amendment to the GG, the court introduced this right “through the backdoor” by holding the tenant’s right of ownership in the rented apartment to be property in the sense of Art. 14 I, 1 GG.1137 The decision not only means that tenants and landlords now enjoy equal constitutional protection under Art. 14 GG. It also means that every legislative attempt to cut down on existing tenant protection must be justified in the light of stronger constitutional tenant protection under Art. 14 I GG.1138 Moreover, tenant’s Art. 14 I GG rights must be considered in the interpretation and application of ordinary law, public and private.1139 As in the cases that I have analyzed so far, the question here is: Why did the court do that? And why in 1993 and not, for example, in 1989 or 1134 BVerfG, Beschluss v. 26.05.1993, 1 BvR 208/93, BVerfGE 89, 1-14. 1135 Art. 14 I GG states: “Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.” 1136 Art. 14 II GG states: “Property entails obligations. Its use shall also serve the public good.” 1137 Rüthers, NJW 1993, 2587; similarly Depenheuer, NJW 1993, 2561, 2564. 1138 See Depenheuer, NJW 1993, 2564. 1139 See Sendler, NJW 1994, 709 ff. with examples from the field of private law; Schmidt-Preuß, NJW 1995, 27 ff. with a public law example.

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1990 when it also had opportunities to do so? Again, there is a traditional understanding based on doctrinal as well as judicial politics arguments, which, again, I will show is unconvincing. And again, I will demonstrate why the change should rather be understood as a product of the court’s attempt to synthesize revolutionary achievements with the old FRG’s constitutional order. I will argue that the East German revolutionaries, expecting large-scale privatizations of government-owned apartments in the GDR upon German unification, had called for strong constitutional tenant protection. This call had been transferred to unified Germany, where it collided with stronger constitutional landlord protection under Art. 14 I GG. My thesis is that the court’s decision is best understood as an attempt to synthesize the two competing positions in the light of the legislature’s inability to do so. In the following I will analyze the decision, present and criticize the traditional understanding of the change it has brought about, and finally present my own view. 1. The decision In its May 26, 1993 decision, the Federal Constitutional Court (BVerfG) rejects a tenant’s argument that a district court’s verdict confirming the tenant’s obligation to vacate the apartment violates the tenant’s basic rights, in particular her right to property based on Art. 14 I, 1 GG.1140 Still, the BVerfG uses the case to say something that it had never said before: the tenant’s lease-based right of ownership in the rented apartment is property in the sense of Art. 14 I, 1 GG.1141 In doing so, the court, for the first time in the FRG’s constitutional history, perceives of the tenant’s right of ownership as property and thus provides equal constitutional protection for landlords and tenants under Art. 14 GG.1142 Prior to this decision, the court had considered the tenant’s right of ownership only within the landlord’s property’s social obligation under Art. 14 II GG.1143 As a result, landlords had enjoyed stronger constitu-

1140 BVerfGE 89, 1, juris-version, rec. 16 ff. 1141 Ibid., rec. 19. 1142 For a historical overview, see Rittstieg, Eigentum als Verfassungsproblem (1976). 1143 See Derleder, in: AK-BGB, Vorb. §§ 535 ff. Rn 55.

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tional protection than tenants because tenant protection had been considered an intrusion into the landlord’s property, which could only be justified if it was necessary for the public good.1144 The decision is interesting for several reasons. First, there was no necessity for the court to elaborate on the property quality of the tenant’s right of ownership in order to decide the case. The court could have left the question open because, regardless of whether or not the tenant’s right of ownership was property, in the specific case the court concluded that it had not been violated because the district court had undertaken all necessary considerations to justify the lease’s cancellation and the tenant’s eviction from the apartment.1145 Second, leaving the question open would have been exactly what the court had been doing before.1146 Why did the court break with this tradition? The court itself states its core argument as follows: The apartment is everybody’s center of private existence. The individual depends upon its use for the satisfaction of fundamental needs in life as well as for the protection of his freedom and the development of his personality. A large part of the population, however, cannot resort to property in order to satisfy its need for housing but is forced to rent. Under these conditions the tenant’s right of ownership fulfills functions that are typically fulfilled by property in goods [Sacheigentum].1147

Interestingly, in previous decisions the court had already considered the apartment’s importance as a “center of human existence” (“Mittelpunkt der menschlichen Existenz”)1148 and as “the spatial center of private life” (“den räumlichen Mittelpunkt des privaten Lebensbereiches”).1149 It had also considered that most people cannot afford to buy but have to rely on renting.1150 However, such considerations had never led the court to conclude a functional equivalence between the tenant’s right of ownership and property in goods. Instead, the court had always considered the tenant’s

1144 See BVerfGE 18, 121, juris-version, rec. 29, 30; BVerfGE 82, 6, juris-version, rec. 34; and BVerfGE 83, 82, juris-version, rec. 15. 1145 BVerfGE 89, 1, juris-version, rec. 32; see also Depenheuer, NJW 1993, 2561, 2562. 1146 See, for example, BVerfGE 18, 121, juris-version, rec. 29; and BVerfG 83, 82, juris-version, rec. 18. 1147 BVerfGE 89, 1, juris-version, rec. 21 (my italics). 1148 BVerfGE 18, 121, juris-version, rec. 30. 1149 BVerfGE, 82, 6, juris-version, rec. 34. 1150 Ibid., rec. 33 with further references.

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interests within the framework of the landlord’s property’s social obligation under Art. 14 II GG, i.e. as justifications to interfere with the landlord’s right to property.1151 What accounts for the change? The court tries to explain it doctrinally: “The essential criterion of property in the sense of Art. 14 GG is that a proprietary right [vermögenswertes Recht] is assigned to its holder for exclusionary private use and disposal as is the case with respect to property in goods.”1152 Protected as property are thus “all proprietary rights that are assigned to their holder by the law in a way that the holder is allowed to exercise all entitlements flowing from these rights for his private benefit according to his own responsible decision.”1153 The tenant’s right of ownership, the court argues, fulfills these requirements. It gives the tenant an exclusive right to use and dispose of the apartment by, for example, subletting it to others, even if the right to sublet depends on the landlord’s consent and is thus limited (eingeschränkte Verfügungsbefugnis).1154 The court concludes that, since the tenant’s right of ownership fulfills the definitional requirements of property, it is property.1155 So far, so good. The problem is that these requirements for the consideration of a proprietary right as property in the sense of Art. 14 I, 1 GG were not new in 1993.1156 Moreover, the tenant’s right of ownership based on the old FRG’s law has always fulfilled them. Why then did the court wait until 1993 to draw its conclusion? The question becomes even more puzzling if one considers that Johann Friedrich Henschel, the justice in charge of landlord-tenant issues in the court’s first senate at the time, had published an article in 1989 in which he emphasized that he could not see why the tenant’s right of ownership in the rented apartment should be considered property.1157 Henschel argued that tenants were sufficiently protected under the landlord’s property’s social obligation (Art. 14 II GG).1158

1151 See BVerfGE 18, 121, juris-version, rec. 30; BVerfGE 82, 6, juris-version, rec. 33, 34 with further references; and BVerfGE 83, 82, juris-version, rec. 15 with further references. 1152 BVerfGE 89, 1, juris-version, rec. 20. 1153 Ibid. 1154 Ibid., rec. 23, 24. 1155 Ibid. 1156 The court explicitly refers to BVerfGE 83, 201, 208, 209, 210; see BVerfGE 89, 1, juris-version, rec. 20, 23, 24. 1157 Henschel, NJW 1989, 938 f. 1158 Ibid., 939.

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The literature offers different traditional arguments for what the court did and why. 2. Traditional understanding The literature’s response to the court’s decision is mixed but mostly critical.1159 Again, one can distinguish between doctrinal and judicial politics arguments. Doctrinal. One opinion denies Art. 14 GG’s applicability to landlordtenant relationships.1160 If the legislature wants to protect the tenant, the argument goes, it must do so within the constitutional framework of freedom of contract (Art. 2 GG), human dignity (Art. 1 GG), and the socialstate clause (Art. 20 I, 28 I GG).1161 Tenant protection, it is argued, interferes with the landlord’s freedom of contract, not her property.1162 Neither does tenant protection serve the “public good” in the sense of Art. 14 II, 2 GG; it only serves tenants.1163 Another argument brought forth against the property quality of the tenant’s right of ownership is that the tenant cannot dispose of the apartment because a sublet requires the landlord’s consent.1164 Finally, it is argued that the court’s decision splits property in the apartment into the tenant’s property comprising the right to use the apartment on the one hand and the landlord’s property comprising the right to dispose of the apartment on the other.1165 Split property, however, is said to be unknown in German law and “would be a source of steady conflict”.1166 I think these arguments are easily refutable doctrinally. If the legislature limits the landlord’s right to cancel a lease and evict the tenant, it does not only interfere with the landlord’s freedom of contract but also with her right to use her property.1167 The latter is a core right protected under Art. 14 I, 1 GG. Tenant protection, on the other hand, does serve the public

1159 1160 1161 1162 1163 1164 1165 1166 1167

See, for example, Depenheuer, NJW 1993, 2561; Rüthers, NJW 1993, 2587. See Roellecke, NJW 1992, 1652 ff. Ibid., 1652, 1653, 1654. Ibid., 1652. Ibid., 1652, 1653. Ibid., 1653; Depenheuer, NJW 1993, 2563. Roellecke, NJW 1992, 1653; Depenheuer, NJW 1993, 2563. Roellecke, NJW 1992, 1653. For example, by living in the apartment herself.

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good because a vast majority of the people depends on renting. Hence, to assert that tenant protection has nothing to do with Art. 14 GG ignores an important constitutional aspect of the problem. As regards the “right to disposal” (“Verfügungsbefugnis”) as a property requirement, the court rightly points out that the tenant does have a limited right to dispose of the apartment by, for example, subletting it with the landlord’s consent. The court is, moreover, right in that it has never required an unlimited right to disposal in order to consider a proprietary right property.1168 Neither is there a “substantive” reason to add such a requirement now.1169 That German law supposedly does not know split property and that split property will turn out to be a source of steady conflict is hardly convincing either. First, based on the court’s decision, the tenant does not hold property in the apartment but in her right of ownership in the apartment. Hence, doctrinally speaking, there is no split property in the apartment. Second, it is hard to see why protecting tenant and landlord equally under Art. 14 GG might cause more conflict than protecting the tenant under Art. 14 II GG and the landlord under Art. 14 I GG. The conflict between the two remains the same because it is based on their conflicting interests. What has changed is the weight that the court has attributed to the tenant’s constitutional position in this conflict; this weight has been increased, which I think is a necessary consequence of equal protection. A more fundamental critique attacks the court’s main argument according to which the tenant’s right of ownership must be deemed property because it “fulfills functions that are typically fulfilled by property in goods”.1170 Voices in the literature reject the idea that the function of a right may justify the right’s constitutional protection because, they say, that damages the protection of freedom.1171 “The protection of property”, the argument goes, “safeguards the possession of goods for the purpose of freedom”;1172 if the constitutional protection of freedom depends on the

1168 The court explicitly refers to BVerfGE 83, 201, 209, where it had said that before; see BVerfGE 89, 1, juris-version, rec. 24. 1169 BVerfGE 89, 1, juris-version, rec. 24. 1170 See supra, 221. 1171 Depenheuer, NJW 1993, 2563; in the same direction Leisner, in: HStR VI, § 149 Rn 90 ff. with further references. 1172 Depenheuer, NJW 1993, 2563.

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function for which that freedom is used, the freedom becomes an obligation.1173 I think this argument is wrong for two reasons. First, a widely accepted original justification for the constitutional protection of property is functional. The protection of property has the “function” of securing the individual’s economic freedom in order to enable her to autonomously shape her life1174 and participate in society.1175 That does not mean that property is only protected if it is actually used in this way. It means that the fundamental justification and legitimization of constitutional property protection is based on the property’s function for the individual’s life and participation in society. It is this concept that the court applied in its May 1993 decision to justify why a tenant’s right of ownership should be protected as property. If authors wanted to criticize this concept, they would have to come up with a new justification for why private property should be protected by the constitution. As far as I can see, none of the critics has done that. The second reason is that the authors’ claim that only proprietors of goods are protected under Art. 14 I GG is arbitrary. Art. 14 GG’s text does not provide any justification for it. It only protects property but does not say what must be considered property.1176 In fact, the authors’ assertion is the result of a specific, what I want to call a civil-liberal understanding of individual rights. According to this understanding, individual rights serve to prevent government interference with society.1177 By arbitrarily limiting the constitutional protection of property to proprietors of goods, these authors try to constitutionalize a laissez-faire ideology. They ignore social requirements for the realization of individual freedom and try to preserve the social status quo in favor of a property-holding economic elite.1178 The court rejects this ideology and explicitly takes social reality into account when it argues that “[a] large part of the population … cannot resort to property to satisfy its need for housing but is forced to rent. Under these 1173 Depenheuer, NJW 1993, 2563 with further references. 1174 See Papier, in: Maunz/Dürig, Art. 14 Rn 1 with references to the BVerfG’s established case-law. 1175 See ibid. Rn 4 with further references. 1176 The GG does not define property, see BVerfGE 36, 281, 290; BVerfGE 42, 263, 292, 293. 1177 See Böckenförde, Staat, Verfassung, Demokratie, 119 ff. 1178 See Rittstieg, 296 ff. with a fitting referral to Holmes’ dissent in Lochner v. New York, see ibid., 297.

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circumstances the tenant’s right of ownership fulfills functions that are typically fulfilled by property in goods [Sacheigentum].”1179 There is nothing in the text of the GG that requires, or even justifies, a civil-liberal understanding of constitutional property protection.1180 To the contrary, a civil-liberal understanding of property protection was prevalent in Germany at a time when economic elites were trying to use property protection under Art. 153 of the Weimar Constitution (WRV) in order to protect their possessions and the social status quo against an increasingly democratized legislature.1181 It is the concept of constitutional property protection developed by a Reichsgericht (RG) controlled by conservative forces starting in 1921.1182 The Bundesgerichtshof (BGH) further developed the RG’s concept after 1949 in order to prevent alternative property concepts promoted by social-democratic forces in the FRG.1183 Many conservative voices in the literature still see the preservation of the economic, social, and political status quo as an important function of property protection under Art. 14 I GG.1184 However, alternative property concepts were, and are, possible under the GG. Art. 14 I GG explicitly states, “Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.”1185 It is this authority of the legislature to specify property protection that the BVerfG refers to in its May 1993 decision when it argues that the legislature has taken account of the apartment’s social function for the tenant by designing the tenant’s right of ownership in the apartment in a way that this right is assigned to the tenant like property in goods.1186 On this basis, it can be concluded that the court only respects, and gives constitutional expression to, the leg-

1179 BVerfGE 89, 1, juris-version, rec. 21. 1180 In this respect, I profoundly disagree with Böckenförde, who writes that the civil-liberal theory reflects the basic normative intention of the basic rights of the GG in response to fundamental violations of freedom during the Third Reich, see Böckenförde, Staat, Verfassung, Demokratie, 143. Rittstieg has demonstrated that a civil-liberal understanding of constitutional protection against a democratic legislature has less to do with the Third Reich than it is the continuation of an economic elite’s strategy to preserve the social status quo against the potential of a democratic legislature, see Rittstieg, 286 ff. 1181 See Rittstieg, 252 ff., 269-271; more generally Maus, 47 ff. 1182 See Rittstieg, 252 ff., 256 ff. referring to RGZ 102, 161. 1183 See Rittstieg, 286 ff., 288, 289 ff. 1184 See Papier, in: Maunz/Dürig, Art. 14 Rn 5 with further references. 1185 My italics. 1186 See BVerfGE 89, 1, juris-version,rec. 21, 22.

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islature’s design of the tenant’s right of ownership in the apartment when it concludes that this right must be considered property in the sense of Art. 14 I, 1 GG. Judicial politics. Other authors blame the court for engaging in judicial politics by putting the tenant’s right of ownership on a new constitutional basis even though that was not necessary to decide the case.1187 Otto Depenheuer, for example, complains that the court has succumbed to the Zeitgeist that has called for a “basic right to housing” or an equivalent state goal.1188 A different judicial-politics criticism blames the court for a lack of economic understanding. Its main point is that by increasing tenants’ constitutional protection the court alienates potential investors in the housing market and thus contributes to the lack of affordable housing.1189 Apart from the fact that these authors do not provide any empirical data to support their views, they obviously overlook the possibility that the court may have engaged in constitutional interpretation to reach its conclusion. Finally, there are doctrinal as well as judicial-politics arguments supporting the court’s decision. One argument is that housing’s social importance requires stronger constitutional tenant protection.1190 Another argument is that tenants’ and landlords’ legal positions are so similar that equal constitutional protection is justified.1191 Finally, Helmut Rittstieg has been demanding property protection for tenants since 1975. He argues that the tenant’s right of ownership in the apartment is a proprietary right based on which the tenant has immediate control over the apartment and uses it as her “space of freedom for independent activities” (“Freiheitsraum für die eigenverantwortliche Betätigung”). The BVerfG has always held the protection of such a right to be the purpose of property protection under Art. 14 I GG.1192 Hence, Rittstieg, already in 1975, pointed to the rented apartment’s social function in order to justify the protection of the tenant’s right of ownership as property.1193

1187 See Depenheuer, NJW 1993, 2562; the original reads: “Nicht aus juristischer Not geboren, erweist sie [die Entscheidung] sich als Akt rechtspolitischen Wollens: Verfassungsgebung durch Verfassungsrichterspruch.” 1188 Ibid. 1189 See Rüthers, NJW 1993, 2588, 2589; also Henschel, NJW 1989, 943. 1190 See Derleder, in: AK-BGB, Vorb. §§ 535 ff. Rn 56. 1191 See Gärtner, JZ 1994, 446; Wolter, 396 f. 1192 Rittstieg, 331 referring to BVerfGE 24, 367, 389, 400. 1193 In fact, Lorenz von Stein, already in 1850, wrote that “[e]very possession … is … the body of real personal freedom and freedom’s outer condition” (emphasis

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Whatever one may think of these arguments, none of them can explain why the court had not taken them up between 1975, when they were first voiced, and 1993. Moreover, they cannot explain why in May 1993 the court, all of a sudden, did follow Rittstieg’s argument and granted tenants property protection under Art. 14 I GG. As in the previous cases, the traditional understanding is unable to convincingly explain the constitutional change. The following IS analysis will show that things become much clearer once the decision is put into historical perspective. As soon as one takes into account that a successful revolution had taken place in the GDR in 1989, that a constitutional right to housing had been an important achievement of this Revolution, and that this achievement had been transferred to unified Germany where the institutions were then confronted with the task of integrating it into the existing constitutional order under the GG, a new and more meaningful understanding of the court’s decision will emerge. 3. My understanding: the decision as an act of IS I want to explain the court’s decision to put tenant and landlord on the same level of constitutional protection under Art. 14 GG as a product of one-two synthesis. My thesis is that the court tried to integrate the revolutionary achievement of a constitutional right to housing (Time Two) into the old FRG’s constitutional order under the GG, which had granted stronger constitutional protection to landlords than to tenants (Time One). Time One. In the old FRG, only the landlord’s position had been protected as property under Art. 14 I GG. Tenant protection had been considered an interference with landlord property and thus required justification as serving the public good (Art. 14 II, 2 GG). This had resulted in a weaker constitutional protection of tenants, even though the court had taken into account both the rented apartment’s function as the center of human existence and the fact that most people depended on renting. On this basis, the Time-One court had left the question of whether or not a tenant’s right of ownership in the rented apartment must be considered

added) (“Jeder Besitz … ist … der Körper der wirklichen persönlichen Freiheit und ihre äussere Bedingung“), see von Stein, Geschichte der socialen bewegung in Frankreich, Bd. 2, p. 57.

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property in the sense of Art. 14 I, 1 GG explicitly open as late as November 1990.1194 Time Two. A change of constitutional dimensions had occurred in the fall of 1989 with the successful Revolution in the GDR and in October 1990 with German unification. The Revolution’s call for a constitutional right to housing had its conceptual basis in the citizens’ movement’s concept of individual empowerment, which had been translated into, inter alia, a call for constitutional social rights, not only as objective state goals but as judicially enforceable individual constitutional rights.1195 Underlying was the insight that appropriate housing is one of the most fundamental necessities that need to be fulfilled in order to make human freedom a reality.1196 The people in the streets had supported the citizens’ movement’s concept of individual empowerment, including the call for a constitutional right to housing. This is reflected in the people’s continuous referrals to the American Civil Rights Revolution, the French, and the Russian Revolutions.1197 It is also reflected in the fact that 90% of the East Germans had been in favor of including a constitutional right to housing in a new constitution for unified Germany.1198 The popular call for a constitutional right to housing had found its legal manifestation in the Social Charter and the RTD. The Social Charter demanded a “basic right to housing and effective tenant protection” in the light of strong insecurity with respect to property questions upon unification.1199 Against this background, the Social Charter put a stronger emphasis on rent regulation and tenant protection against arbitrary lease cancellations than on the provision of new housing.1200 The RTD included a detailed provision on a right to housing. Art. 25 (1), 1 RTD guaranteed every citizen a “right to appropriate housing” (“Recht auf angemessenen Wohnraum”). Art. 25 (1), 2 RTD stated that legal protection against lease cancellation (gesetzlicher Kündigungsschutz) must be provided. Art. 25

1194 See BVerfGE 83, 82, juris-version, rec. 15, 18; the decision dates from Nov. 13, 1990, 1 BvR 275/90; see also BVerfGE 18, 121, juris-version, rec. 29, 30. 1195 See supra, 52 ff., 83 f., 89. 1196 See supra, 50 ff. 1197 See supra, 67 ff. 1198 See supra, 70, 71. 1199 Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 141; see supra, 83. 1200 Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 141.

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(1), 3 RTD explicitly elaborated on how to balance landlords’ and tenants’ interests: “When balancing tenants’ and landlords’ interests against each other, special weight must be accorded to the apartment’s outstanding importance for living a life in human dignity”.1201 The RTD, thus, accorded particular constitutional weight to the tenant’s interests based on the rented apartment’s function for the tenant’s life. 1202 Finally, Art. 25 (1), 4 RTD strengthened the tenant’s position even further by stating that a tenant may only be evicted from an apartment once a substitute apartment is available. An institutional reaction to the revolutionaries’ call for a constitutional right to housing had come from the post-revolutionary GDR’s first freely elected government. The de Maiziere government’s coalition agreement stated that “[w]hen amending the GG, it is the government’s goal to introduce social rights as non-enforceable individual rights. This applies primarily to the right to labor, housing, and education.”1203 De Maiziere’s government declaration of April 19, 1990 emphasized the government’s responsibility for appropriate housing, tenant protection, and rent control.1204 The importance that constitutional tenant protection had acquired during the 1989 Revolution must be seen in the light of the fact that most people in the GDR had been tenants. It was mostly the government who had acted as landlord, and even private landlord-tenant relationships had been strongly regulated.1205 Facing unification, East Germans had feared the impact on their leases of the FRG’s so-called social market economy with its foreseeable privatizations of government owned apartments. For East Germans, tenant protection was thus much more important than the provision of new housing. In that situation, a constitutional right to housing aimed at forcing even the most conservative legislature to provide for strong tenant protection upon German unification. The UT and most of the new state constitutions had transferred the revolutionary achievement of a constitutional right to housing to unified Ger-

1201 1202 1203 1204 1205

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My italics. So, too, Bremers, in: Fischer/Künzel (Hrsg.), Bd. I, 147; and Rogner, 92. See supra, 109 (my italics). See supra, 111. Generally on the legal position of tenants in the GDR, see Pahlke, Die Rechtsstellung des Mieters von Wohnraum in der DDR (1983).

B. The BVerfG as an integrative institution

many.1206 As a matter of principle, West German landlord-tenant law entered into force in the new states upon German unification on October 3, 1990.1207 However, the UT provided for important exemptions, for example, by keeping in force in the new states specified provisions of the GDR’s tenant protection law.1208 For leases signed in the GDR prior to unification the landlord’s right to cancellation remained much more limited than it would have been under the Civil Code in the FRG.1209 A cancellation of such leases for the landlord’s own use (Eigenbedarf), for instance, was, as a matter of principle, only possible after December 31, 1995.1210 Moreover, the UT temporarily limited the landlord’s right to increase rents.1211 For example, it stipulated that a GDR regulation of Jun. 25, 1990 according to which rent increases were allowed only under very limited conditions remained in force until December 31, 1991 for already existing residential property.1212 Finally, Art. 5 UT “recommended” to unified Germany’s legislature to think about adopting a right to housing as a constitutional state goal.1213 Most new state constitutions contained a right to housing in the sense of a government obligation to protect tenants against unreasonable rent increases and arbitrary lease cancellations.1214 In addition, the state of Brandenburg’s constitution had taken over the RTD provision according to which special consideration must be given to the apartment’s importance for the tenant to live a life in human dignity when weighing the tenant’s and the landlord’s interests against each other.1215 The Brandenburg constitution further increased tenant protection by taking over the RTD provi-

1206 See supra, 142, 145 f. 1207 See Art. 232 § 2 Abs. 1 EGBGB in the UT’s version of 31.08.1990 (BGBl II 1990, 885, 943). 1208 Emmerich, in: Staudinger, Vorb. zu §§ 535, 536 Rn 31, 34. 1209 See Art. 232 § 2 Abs. 2 – 4 EGBGB. 1210 See Gesetz zur Verlängerung der Wartefristen v. 21.12.1992 (BGBl I 1992, 217); Emmerich, in: Staudinger, Vorb. zu §§ 535, 536 Rn 32. 1211 See Emmerich, in: Staudinger, Vorb. zu §§ 535, 536 Rn 33 ff. 1212 See UT, Anlage II z. EVertr, Kapitel V, Sachgebiet A – Allgemeines Wirtschaftsrecht, Wirtschaftspolitik, Wettbewerbs- und Preisrecht, Abschnitt III, Nr. 1 lit. a dd); Emmerich, in: Staudinger, Vorb. zu §§ 535, 536 Rn 34, 35 listing further limitations. 1213 See supra, 142. 1214 See Constitutions of Brandenburg, Art. 47 I; Saxony, Art. 7; Saxony-Anhalt, Art. 40; and Mecklenburg-West Pomerania, Art. 17 II; supra, 145 f. 1215 Constitution of Brandenburg, Art. 47 II.

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sion according to which a tenant may only be evicted from an apartment once a substitute apartment is available.1216 Again, unified Germany’s legislature was failing to answer the call. The most promising attempt to integrate the revolutionary achievement of a constitutional right to housing into a new constitution for unified Germany had been undertaken by the Kuratorium. Art. 13 a of the Kuratorium’s Draft stated: The government protects the right of every human being to appropriate housing. It promotes the construction and preservation of social and ecological housing. It ensures affordable rents and provides protection against lease cancellation, which duly considers the outstanding importance of housing for living a life in human dignity.

This proposal, however, had not become law. Neither had the Bundesrat’s Commission1217 or the GVK1218 been able to agree on a constitutional right to housing or on any other constitutional social right, for that matter. One-two synthesis. That was the situation when the court, in May 1993, decided to grant constitutional property protection to the tenant’s right of ownership in the rented apartment. The court had still been able to leave open the question in a decision on November 13, 1990.1219 Even though the revolutionary people had already spoken, a little more than a month after unification it had been difficult for the court to know what exactly they had said. Moreover, in November 1990 the court had not been able know whether or not the legislature would live up to the task of integrating the revolutionary achievements into the existing West German constitutional order. The political debate over what to make of the 1989 Revolution and its impact on unified Germany’s constitutional law had still been in an early phase. The UT, even though it had provided for a transfer of specific tenant protection provisions from the post-revolutionary GDR to unified Germany, had left the decision of whether or not to adopt constitutional social state goals to unified Germany’s legislature (Art. 5 UT). The UT had given the legislature until the end of 1992 to decide the issue. Against this background, in November 1990 it had still been reasonable for the court to leave the question open.

1216 Ibid. 1217 See Report of the Bundesrat’s Commission Constitutional Reform, in: Fischer/ Künzel (Hrsg.), Bd. II, 450, 451. 1218 See GVK Report, in: Fischer/Künzel (Hrsg.), Bd. III, 587 ff., 591 ff. 1219 BVerfGE 83, 82, juris-version, rec. 18.

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By May 1993, however, the situation had changed fundamentally. Not only was it clear by now that the revolutionary East Germans had achieved a constitutional right to housing. It had also become clear that unified Germany’s legislature was not getting anywhere with its efforts to integrate this revolutionary achievement into the West German constitutional order under the GG.1220 At the same time, rents in the new states were exploding. Where rents for residential housing in the GDR had been less than one East Mark per square meter, they had increased to an average of seven West Marks per square meter by 1993.1221 In this situation, it was no longer possible for the court to close its eyes to the will of the revolutionary people. It had to do what the legislature had turned out to be unable to do: integrate the revolutionary achievement of a constitutional right to housing into the GG. Confronted with an East German claim to weigh the tenant’s constitutional position stronger than the landlord’s and the old FRG’s GG under which the tenant’s constitutional position was weaker than the landlord’s, the court decided to grant both tenant and landlord equally strong constitutional protection under Art. 14 GG.1222 The court’s strongest argument for this decision is remarkably close to the RTD’s justification for a constitutional right to housing. Both are explicitly based on the rented apartment’s social function to help realize the tenant’s individual freedom and personal development.1223 Both are rooted in the principle of individual empowerment, according to which social reality must be taken into account in order to make constitutional individual rights a social reality for everyone. The court’s reasoning also reflects the revolutionary constitutional concept of equality of freedom1224 by granting landlord and tenant equal constitutional protection based on their rights’ equal social function to realize individual liberty and personal development. Another important respect in which the court has brought to

1220 See Depenheuer, NJW 1993, 2564 referring to Mitteilung des Sekretariats der GVK über die Abstimmungsergebnisse zu den Themenkomplexen “Staatsziele und Grundrechte” v. 24.02.1993, S. 3; see also supra, 158 ff. 1221 Tesch/Warnick, in: Forum Wissenschaft 2/2004. 1222 The court explicitly emphasizes this, see BVerfGE 89, 1, juris-version, rec. 29 (“Namentlich folgt aus dem Eigentumsschutz des Besitzrechts nicht, daß im Konflikt beider duch die Verfassung geschützten Eigentumspositionen das Bestandsinteresse des Mieters in jedem Falle vorgeht”). 1223 See Art. 25 (1) RTD. 1224 See supra, 53 f.

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bear the revolutionaries’ achievement of a constitutional right to housing is that the court has granted the tenant her own constitutional right. Even if there had been different versions of this idea in the catalogue of revolutionary demands (from a judicially enforceable individual constitutional right to a constitutional state goal), the revolutionaries had clearly wanted the tenant’s constitutional position to be more than only a social-obligation annex to the landlord’s property protection. This revolutionary demand is reflected in the court’s decision to consider the tenant’s right of ownership in the apartment to be property in the sense of Art. 14 I, 1 GG, i.e. an individual constitutional right.1225 This individual right provides for particularly strong constitutional tenant protection in the light of the fact that, under the GG, individual rights may be interpreted as individual claims against the legislature to provide for effective individual rights protection. The court, in its decision on May 26, 1993, has brought all these elements from the revolutionaries’ constitutional agenda to bear on unified Germany’s constitutional law, even if the court did not explicitly refer to the 1989 Revolution in its reasoning. Against this background, it no longer appears as a “timely coincidence” (“zeitlicher Zufall”) that the court acted as a “substitute legislature” (“Ersatz-Verfassungsgeber”) hardly more than three months after the GVK had published the results of a vote that rejected the introduction of a constitutional state goal to protect a tenant’s right to housing.1226 By integrating the revolutionary achievement of a constitutional right to housing into unified Germany’s existing constitutional order under the GG the court, once again, engaged in one-two synthesis as an act of constitutional interpretation.

1225 Depenheuer writes that “… demands for a ‘basic right to housing’ or the introduction of a respective state goal reflect the tendency of a constitutional upgrade of tenants’ interests”, see Depenheuer, NJW 1993, 2562. However, he does not establish the connection between this “tendency” and specific constitutional demands by the revolutionary East Germans, see ibid. 1226 See Depenheuer, NJW 1993, 2564 referring to the Mitteilung des Sekretariats der GVK über die Abstimmungsergebnisse zu den Themenkomplexen “Staatsziele und Grundrechte” v. 24.02.1993, S. 3.

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C. Conclusion

C. Conclusion This chapter has demonstrated that unified Germany’s constitutional law experienced important changes upon German unification. A state goal of environmental protection was added, the Bodenreform-expropriations were confirmed, a state obligation to realize gender equality as a fact of social reality was established, the requirement of criminal punishment of abortion during the first twelve weeks of the pregnancy was given up, and the tenant’s right of ownership in the rented apartment was granted property protection under Art. 14 I GG. Moreover, the chapter has shown that traditional arguments are unable to convincingly explain these changes. They cannot explain why the changes occurred when they occurred. Doctrinal arguments appear arbitrary and strongly determined by the desired outcome. Judicial politics arguments give up too quickly on the possibility of explaining the changes as results of constitutional interpretation. All traditional arguments have in common that they ignore the possibility of the 1989 Revolution’s substantive impact on unified Germany’s constitutional law. My analysis has demonstrated that the changes show clear signs of what in Ackerman’s words may be called one-two synthesis. They reflect the attempt by unified Germany’s institutions to integrate revolutionary achievements (Time Two) into the existing constitutional order under the GG (Time One). The legislature’s adoption of environmental protection as a state goal, for example, shows signs of an integration of the revolutionary call for a constitutional right to environmental protection into a constitutional order that did not know an explicit constitutional protection of the environment. The BVerfG’s decision to uphold the confirmation of the Bodenreform-expropriations appears like the integration of the revolutionary demand to confirm the Bodenreform into a constitutional order that requires to return illegally expropriated property to former owners by adding to Art. 143 III GG a governmental obligation to compensate former owners. The introduction of a state obligation to realize gender equality as a fact of social reality shows clear signs of integrating the revolutionary call for real equality for women into a constitutional order that took an in principle formal-legal approach to gender equality. The development of a counseling model for the legal treatment of abortion appears like the integration of the revolutionary principle of individual empowerment and a woman’s right to abortion into a constitutional order that is unable to compromise the unborn child’s right to life. And finally, the introduction of 235

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property protection for the tenant’s right of ownership in the rented apartment can be explained as the integration of a revolutionary call for a constitutional right to housing into a constitutional order that granted stronger constitutional protection to landlords. Contrary to the traditional understanding, these explanations take account of both the 1989 Revolution’s constitutional meaning for unified Germany and the possibility of constitutional interpretation. My analysis, thus, demonstrates that some of the 1989 Revolution’s constitutional achievements have had a substantive impact on unified Germany’s constitutional law. Therefore, the latter is, at least to some extent, a co-production between the revolutionary East Germans and the old FRG, even without a formal plebiscite on a new constitution for unified Germany. This shows that unified Germany’s constitutional law has been subject to revolutionary reform through unconventional adaptation. It was only in the case of environmental protection that the legislature managed to take the conventional road of constitutional amendment to successfully integrate revolutionary achievements into the existing constitutional order under the GG. In all other cases, the legislature failed the integrative challenge, so that the BVerfG had to take over and integrate revolutionary achievements by way of constitutional interpretation. This shows that unconventional adaptation was not only used by GDR institutions to legally manifest revolutionary achievements and transfer them to unified Germany. The BVerfG, too, engaged in unconventional adaptation in order to integrate revolutionary achievements where the legislative process turned out to be unable to do so. Therefore, similar to the U.S., unconventional adaptation is a characteristic of revolutionary constitutional reform in Germany.

236

Conclusion: Rediscovering the 1989 Revolution

The goal of this work has been to rediscover the 1989 Revolution and its constitutional meaning in order to keep both from being forgotten. According to Arendt, the danger of forgetting important historical events is twofold. One is that the truth, manifest in historical facts, will disappear after a while if the facts are no longer remembered.1227 The other is that the meaning of a historical event cannot even begin to materialize without remembrance.1228 Referring to the “lost treasure of the revolutions”, Arendt writes, The tragedy began … when it turned out that there was no mind to inherit and to question, to think about and to remember … [because] … the ‘completion’, which indeed every enacted event must have in the minds of those who then are to tell the story and to convey its meaning, eluded them; and without this thinking completion after the act, without the articulation accomplished by remembrance, there simply was no story left that could be told.1229

Arendt emphasizes the seriousness of such forgetting when, with respect to the American Revolution, she writes, “… such oblivion would not be academic; it would quite literally spell the end of the American Republic.”1230 One way to prevent the forgetting of events of constitutional importance and the loss of their meaning is to manifest this meaning in written constitutional law and to remember it in constitutional interpretation and analysis. The 1989 Revolution in the GDR is one of the most important historical events in recent German history. Yet, it is hardly discussed in terms of constitutional law. Unified Germany’s GG does not mention it, and the dominant opinion in German constitutional scholarship denies it any substantive impact on unified Germany’s constitutional law. Changes in the latter that have occurred in the wake of German unification are considered 1227 See Arendt, On Revolution, 25: “… facts … do not disappear when historians or sociologists refuse to learn from them, though they may when everybody has forgotten them.” 1228 For Arendt’s concepts of truth and meaning, see Arendt, The Life of the Mind, Part One/Thinking, 53 ff., 57 ff. 1229 Arendt, Between Past and Future, 6. 1230 Arendt, On Revolution, 25.

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to have no substantive connection with the 1989 Revolution. Instead, they are understood as the results of general reforms, legal doctrine, or judicial politics. This traditional understanding furthers the forgetting of the 1989 Revolution and its constitutional meaning. Ackerman’s theory of IS is a tool of constitutional analysis and interpretation that encourages us to remember, think, and talk about the 1989 Revolution and its meaning in terms of constitutional law. Based on this theory as well as on Arendt’s writings, I have analyzed the 1989 Revolution in order to find out if it was a real revolution, to determine the constitutional principles it has brought forth, and to see what has become of these principles upon German unification. What I have found out is that the 1989 Revolution was a real revolution, during which the East Germans became aware of themselves as the pouvoir constituant. As such, they peacefully and in a highly disciplined manner violated the rules of the SED party dictatorship and swept it away in an act of liberation. This liberation from tyranny has found its most important and lasting institutional reaction and legal manifestation in German unification and the adoption by the new states of the GG with its catalogue of civil rights. But the 1989 Revolution’s meaning does not exhaust itself in German unification and the adoption of the GG by the new states. The 1989 Revolution shares with other revolutions of modern times the exceptional experience of public freedom in the sense of people’s direct participation in government.1231 The revolutionary East Germans experienced public freedom in their work in RTs, which sprang up spontaneously all over the country at every level of government. What the 1989 Revolution also shares with other revolutions of modern times, however, is that the experience of public freedom did not find legal manifestation and was instead blocked out by the party system and given up by the people.1232 Elements of revolutionary meaning that did find legal manifestation are the principles of individual empowerment and environmental protection. These principles found their way into the Social Charter, the RTD, the VGG, and, by way of the UT and the new state constitutions, into unified Germany. Individual empowerment, also circumscribed as the principle of “equality of freedom”, stands for an individual constitutional claim against 1231 See generally Arendt, Thoughts on Politics and Revolution, in: Arendt, Crises of the Republic, 231. 1232 For the other revolutions, see ibid.

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the state, or at least an objective state obligation, to generate a social environment in which everybody has equal opportunity to make constitutional rights a social reality. Individual empowerment tries to withdraw the social question, i.e. the question of providing for the pure necessities of life, from the area of political discourse by embedding in constitutional law everybody’s entitlement to these necessities. Constitutional social rights, such as rights to labor, housing, and social security are important legal means to implement the principle of individual empowerment. Another legal means for this purpose is the constitutional claim, or objective state obligation, to make gender equality a fact of social reality instead of only a formal-legal right. Finally, a woman’s right to abortion is an important element of the principle of individual empowerment. Environmental protection stands for an active government obligation to protect the environment. My analysis has demonstrated that the East Germans, when, during the Revolution’s second phase, they decided for German unification and the adoption of the GG instead of a reform of a sovereign GDR, did not give up on the principles of individual empowerment and environmental protection. They added German unification to their revolutionary agenda but at the same time wanted to preserve the principles of individual empowerment and environmental protection by transferring them to unified Germany. During the Revolution’s second phase, the East Germans did no longer act for the GDR but, in de Maiziere’s words, “constituted [themselves] … as part of that one German people that shall grow together again.”1233 The East Germans wanted, as Schäuble put it, “to find themselves” in unified Germany.1234 This is why the East Germans wanted, and the West Germans accepted, the UT as a legal instrument for the transfer of revolutionary achievements to unified Germany.1235 My analysis of constitutional change in the wake of German unification shows that the 1989 Revolution’s meaning is not lost. Its constitutional principles of individual empowerment and environmental protection were transferred to unified Germany through the UT and the new state constitutions. In unified Germany it was mostly the BVerfG who took up these principles and tried to integrate them into the existing constitutional order under the GG, i.e. into the old FRG’s constitutional order. The confirma1233 Government Declaration April 19, 1990, p. 3; see supra, 110. 1234 Schäuble, Der Vertrag, 125 (my italics); see supra, 135. 1235 Ibid.

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tion of Bodenreform-expropriations in 1991; the introduction of a constitutional state obligation to make gender equality a fact of social reality in 1992; the stronger consideration of women’s social reality and their right to self-determination in the legal treatment of abortions in 1993; the protection of a tenant’s right of ownership in the rented apartment as property in 1993; and, finally, the adoption of a constitutional state goal of environmental protection in 1994: all these are fundamental changes of unified Germany’s constitutional law that clearly reflect constitutional principles of the 1989 Revolution. This cannot be mere coincidence. I have explained these changes as products of IS through which mostly the BVerfG has made unified Germany’s constitutional law a product of revolutionary reform through unconventional adaptation. This understanding takes seriously the 1989 Revolution’s meaning as an act of political freedom by an important part of the German people and tries to preserve the memory of the act’s constitutional relevance for unified Germany. It moreover tries to remind people that popular sovereignty can work in Germany and that people’s direct participation in politics can make a lasting difference. It shall also remind us, however, that revolutionary “treasures”, such as public freedom, are lost if they are not held on to and if they are not manifested in constitutional law. Based on my analysis, I see two challenges for German constitutional law for the future. First, there is the challenge to both withstand the conservative effort to diminish the 1989 Revolution’s constitutional meaning and continue the integration of its constitutional achievements into unified Germany’s constitutional order. The Revolution’s meaning will only be remembered if, and as long as, it is self-consciously talked about in constitutional analysis and constitutional interpretation. Moreover, I think that the further implementation of individual empowerment and environmental protection is the very basis, the conditio sine qua non, for meeting the second challenge. The second challenge is to remember, and hopefully reestablish, the experience of public freedom. The 1989 Revolution has demonstrated yet again that public freedom does exist, i.e. that freedom is indeed more than freedom from government intervention, freedom from politics, or freedom to strive for private happiness. The revolutionary East Germans experienced what generations of revolutionaries had experienced before them: that “acting is fun”, that participating in public politics contributes to what Arendt, referring to the eighteenth century, calls “public freedom” or

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“public happiness”.1236 It means that “when man takes part in public life he opens up for himself a dimension of human experience that otherwise remains closed to him and that in some way constitutes a part of complete ‘happiness’.”1237 Against the background of this experience, Dualism, i.e. the limitation of people’s participation to “higher lawmaking” while they focus on their private lives during times of “normal politics”, is not enough. If the goal is to realize complete, i.e. private and public freedom, constitutional law must institutionalize people’s opportunities to directly participate in politics, normal and higher. I see no reason why public freedom should be limited to “higher”, i.e. constitutional, lawmaking. In order to realize public freedom, the RTs of the 1989 Revolution and the experiences with them seem like a good place to start. They, once again, institutionalized the “council system”, of which Arendt, referring to “all revolutions” of modern times, writes that it “seems to correspond to and spring from the very experience of political action.”1238 And, to quote Arendt yet again, it is “[i]n this direction … [that] there must be something to be found, a completely different principle of organization, which begins from below, continues upward, and finally leads to a parliament.”1239 Maybe, the council system can be a place where the people, and not only lawyers and politicians, can engage in that “liberal dialogue” over the normative principles that shall guide the activist state.1240 However, another shared experience of the 1989 Revolution and its 18th and 20th century predecessors is that the council system, time and again, was blocked out by the party system. It will therefore be of utmost importance to integrate both systems into the existing parliamentary system. I must admit that I have not gotten to the bottom of that problem, yet. What I do know, however, is that to “save” RTs for emergencies while the party system monopolizes times of normal politics is too “dualist” in that it denies public freedom during times of normal politics.1241 Equally insuffi-

1236 Arendt, Between Past and Future, 5. 1237 Arendt, Thoughts on Politics and Revolution, in: Arendt, Crises of the Republic, 203. 1238 Ibid., 231, 232 f. 1239 Ibid., 232. 1240 For the concept of “liberal dialogue”, see Ackerman, Social Justice in the Liberal State (1980); Ackerman, Reconstructing American Law, 96 ff. 1241 See supra, 87, 123 ff.

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cient is a further institutionalization of so-called new social movements or citizens’ initiatives because they neither represent nor strive for people’s direct participation in government. Such movements and initiatives rather resemble lobbyists in that they focus on putting pressure on elected party politicians in order to promote private interests. The construction of an institutional framework that properly accommodates both the council system and the party system will require a careful study of both systems’ dynamics in order to see how they can cooperate. Such a study will also have to consider the role of interests and economic power at a national as well as at an international level, where so-called “international investors” are increasingly using economic power to dictate politics. Arendt’s differentiation between the political and the social could play an important role in determining different institutions’ respective areas of responsibility. As regards the development of specific responsibilities for RTs, it may be a good idea to fall back on Thomas Jefferson’s proposal to “[b]egin them only for a single purpose; they will soon show for what others they are the best instruments”.1242 Some experimentation could do a lot of good and could help to preserve the memory of the 1989 Revolution and its constitutional meaning.

1242 Jefferson, quoted in: Arendt, On Revolution, 279.

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Acknowledgments

This work is based on my J.S.D. dissertation that was accepted by the faculty of the Yale Law School in September 2012. For their support and helpful suggestions I would like to thank Bruce Ackerman, Paul Kahn, Jed Rubenfeld, Donald Kommers, Peter Quint, Lori Reynolds, and my colleagues at the Peking University School of Transnational Law.

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