Why are constitutional changes important

Basic Law and Parliamentary Council

Prof. Dr. Christoph Gusy

To person

Christoph Gusy is professor at the chair for public law, political theory and constitutional history at Bielefeld University. His main research interests are recent constitutional history and constitutional law.

The Basic Law was originally planned as a temporary measure. Since reunification, it has been considered the all-German constitution. In 60 years it has seen 52 constitutional changes, but not yet a major constitutional crisis. Did the Basic Law prove its worth because it was open to changes?

The signatures of Konrad Adenauer, Adolph Schönfelder and Hermann Schäfer on the Basic Law of 1949. (& copy HDG)
In the 60 years since it was passed, the Basic Law has proven itself because it was open to changes. This involved a difficult balancing act: On the one hand, it is a relevant constitution that has drawn effective guidelines and limits for the political process. On the other hand, there were no insurmountable boundaries to oppose unavoidable need for change. There has therefore not been a serious constitutional crisis in the 60 years since the Basic Law came into existence.

From provisional to constitution

When the Parliamentary Council passed the Basic Law, its claim was rather modest. It should be a provisional order, which should only apply for the transitional period until the restoration of German unity. At the time, this range was considered to be rather short. In addition, important political issues of the time were excluded: where the Parliamentary Council could not agree, either abstract formulas were used or the matter was handed over to the future legislature for regulation. After all, the Federal Republic to be founded was only a state in the making with limited sovereignty.

All of this spoke for a certain minimalism on the part of the constitution-maker. The new order was rather reserved, more legally restrictive than politically groundbreaking and designed with a lot of detail. In view of the post-war reality, major promises such as a right to work or social support would have been politically unrealistic, if not illusory, at best.

Ways of change

60 years later, the Basic Law looks different. So far 52 constitutional amendments have changed, added or repealed no fewer than 109 articles. Originally there were 146 articles, now there are 181. The difference is easy to see from the outside. But that alone would not be enough to describe the degree of change. Because that would only count those laws that have expressly changed the text. At least as important were two other avenues of change.

First there is the case law of the Federal Constitutional Court, which has transformed the Basic Law from a mere text into an interpreted and applied set of rules. And there are the activities of the various legislators, which according to the plan of the Parliamentary Council should regulate the open questions and have often regulated them. They too have brought about important changes in meaning: both below the constitutional level through federal and state laws and in a higher-ranking (European) context.

The amendments to the Basic Law were uneven. While amendment laws were passed relatively regularly in the fifties and sixties, there was a certain calming down in the seventies and eighties. It was not until the time of German and the approximately simultaneous European unification that there was renewed intensification. On average, there was just one amendment act per year.

Bundeswehr, emergency laws and federalism reform

But these amendment laws were designed very differently. Most of them concerned only one or very few constitutional provisions, especially questions of jurisdiction. Fundamental redesigns, which changed a large number of individual regulations, were more important. This included the introduction of the armed forces and conscription in 1956, which was extremely controversial at the time (16 individual changes). Until then, the Basic Law only knew conscientious objection, but no army and no military service.

It followed (1968) as the second "big" innovation, the then extremely contested emergency laws (29 amendments), which were of great symbolic value in the disputes of the time. At that time, some supporters and many opponents assumed that the new laws would also be applied, possibly even against the "68ers" themselves - which has never happened since then.

Less spectacular, but nonetheless important (1969) was the reform of the financial relations between the federal government and the federal states (9 changes). This closed all major gaps that the originally provisional character of the Basic Law had left. The "old" Federal Republic now had a fully developed constitution. Its conversion to the all-German constitution took place on the occasion of unification in two stages (1990, 1994) with a total of 19 individual changes, most of which had little contact with German unification in terms of content.

The last major constitutional reform was the 2006 federalism reform (25 innovations). Its continuation is currently planned. What has been enumerated here in detail had the effect of nothing less than the transition from the provisional basic order of the West German state to the fully developed constitution of the whole of Germany as a member state of a united Europe.

The concept of democracy

In terms of content, the innovations related to a large number of constitutional matters. It all started with the expansion of the constitutional concept of democracy. In the fifties, its rather defensive protection against a people dominated, of which one could not be certain at any rate from a democratic point of view. The past with the end of the Weimar Republic and National Socialism was too close. Initially, the Basic Law was more aimed at promoting stability than promoting citizen participation (hardly any referendums; only a constructive vote of no confidence in the Federal Chancellor).

In addition, the five percent clause was added by law to the election law for the 1953 Bundestag election. Their consequence was the end of the small fractions and parties. In contrast, the Basic Law and the Federal Constitutional Court have prevented attempts by the federal government to acquire its own television program, as well as efforts by the large parties to gain further legal advantages over smaller competitors and citizens' groups.

In the meantime, the democratic maturity of the people is rated higher: the increased approval of referendums at the state and municipal level, the right to vote for all EU citizens to the municipal councils and the almost comprehensive abolition of the five percent clauses at the municipal level bear witness to this. Whether the clause to stabilize parliamentary governments is necessary at all or at this level is controversial. At present, the focus is more on preventing radical splinter groups from entering the parliament.

The role of the countries

As the representation of the federal states, the Federal Council is directly involved in the federal government's decision. (& copy AP)
The restructuring of federalism was also important. In the beginning, the independence of the individual countries was in the foreground, but centralization has dominated since the 1950s.
tendencies. The countries lost more and more responsibilities; In return, they received more and more rights to participate in federal decisions and financial grants.

In the "cooperative federalism" that was developing in this way, the individual countries - with the exception of a few large ones - lost their importance; The importance of the "Länderschiene" became more important, in particular due to the right to participate in the Federal Council. At the same time, it changed from the "forum of the states" to the "forum of the opposition".

The 2006 federalism reform is intended to partially reverse this development. The program reads: More individual responsibility and statehood for the federal states by strengthening their tasks and - still in the planning stage - their finances. This is also intended to promote the idea of ​​competitive federalism. A program with an as yet uncertain outcome.