A BRILLIANT TAKE ON GERMANY'S CONSTITUTIONAL HISTORY (I)

- Alexander Thiele. Der Konstituierte Staat. Eine Verfassungsgeschichte der Neuzeit. Frankfurt: Campus Verlag, 2021.

Part I. The monarchical principle

I was drawn to this book after reading Hedwig Richter's Demokratie. Eine deutsche Affäre. Vom 18. Jahrhundert bis zur Gegenwart (München: C. H. Beck, 2020), as the two authors frequently engage each other on Twitter (@RichterHedwig and @Alex_J_Thiele) [1]. My interest, as a historian of political checks and balances, stems from an urgent need to know more about German constitutionalism. Germany's —and, more broadly, Northern Europe's— successful democracies have not attracted the attention they deserve outside Europe. At a time of relative instability in the United States —and of outright instability in parts of Latin America— this paradox is worth addressing. This review is but a tiny contribution towards repairing this abnormal state of affairs.

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The two books complement each other well. In Dr. Richter's (HR) volume, rhetorical élan and passion pervade from the first page. HR presents a modern-day, feminist approach to Germany's constitutional and democratic history. She strongly advocates the need for political checks and balances in order to preserve security and womens' rights. Dr. Thiele's (AT) book, by contrast, is full of technical discussions on constitutional matters. Always the Professor, AT enumerates, time and again, the arguments available on each point under discussion. His book is clearly the product of notes for an academic course. All in all, taken together, the reader of HR and AT ends up with a clear vision of Germany's political history during the last couple of centuries, with its dramatic failures and its present-day success. I took dozens of notes on each book.

In the case of Der konstituierte Staat, my notes are so long and numerous that I am forced to select only a few topics for discussion here. Other aspects of the book will be treated, hopefully, in upcoming blog posts. Here are the main topics of this (first) review: (1) « das monarchische Prinzip », the notion that underpins all Northern European constitutionalism; (2) the relevance of the Bundesverfassungsgericht (the Constitutional Court in Karlsruhe). If I'm not mistaken, this is where the « Merkmale des deustchen Konstitutionalismus » (the distinctive signs of German constitutionalism) make their mark. And I'm grateful to Prof. Thiele for providing readers with such an interesting, detailed and lively account of these key points.

In my conclusion, however, I will challenge the notion of Die Zäsur der Neuzeit presented by AT in the first chapter. My point is the following: if the monarchical principle and the principle of cooperation between the judiciary and the rest of the government —as embodied, among others, by the workings of the Bundesverfassungsgericht— are the hallmarks of German constitutionalism, then there is no "clean break" with the classical, pre-modern constitutionalism of the mixed regime.

And that, to me, is excellent news.

Das monarchische Prinzip
The monarchical principle plays a key role in German and, more broadly, in Northern European constitutionalism. I cannot over-emphasize the importance of this point, clearly stated by AT throughout the book. Prof. Thiele uses several expressions: the strenge Form ("strict form", p. 191), and the Reinform ("pure form", p. 196) respond to an enge Begriffsverständniss (a tight understanding of the concept). After the American and French revolutions, this interpretation had become passé almost everywhere in the Western world. What really matters to us is the 'weak form' —abgeschwächte Form (p. 198)— of the monarchical principle, or its weite Begriffsverständniss (broad understanding of the concept). Perhaps I am stretching things a bit here, but such is my enthusiasm with AT's book that I will take the liberty to expand the scope of some of the ideas

The way I see it, the weak form of the monarchical principle has at least three implications that matter enormously when we compare, for example, the current state of affairs in Northern Europe and Latin America. The first point has to do with the (possible) role of a monarch in the unlikely event of a power vacuum (Herrschaftsvakuum, p. 80) or « etatlose Zustand » (p. 242). I was reminded of this as I watched the series The Crown. On two occasions in the series, the young Queen Elisabeth II faces constitutional problems stemming from PM Winston Churchill's waning intellectual and physical capacities [see]. Discussing these matters with Dr. María E. Casullo (@mecasullo) [see], I proposed to imagine a situation of a power vacuum —which happened at least twice in recent years in Argentina— in The Netherlands, where I lived from 2001 to 2010.

Here's my point. The Dutch people would likey rally around their monarch as a consensus-creating figure capable of bringing a sense of calm in the midst of turmoil, before working out a solution. In recent European history, the decisive role played by Spanish King Juan Carlos I in defense of democracy between 1975 and 1981 provides a brilliant illustration of this point. By contrast, a situation of this nature, in weak Latin American republics with little Verfassungskultur, would eventually bring a demagogic strongman to power—with all the attached implications in terms of lost freedom and security. In that respect, Alexander Thiele quotes the tremendous definition of Carl Schmitt, whom he calls a schillende Figur: « Souverän ist, wer über den Ausnahmezustand entscheidet » (the sovereign is the one who decides over the state of exception).

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Another way to assess the importance of the monarchical principle is to consider the problem of tenure security in key positions—nowadays: judges and the governor of the central bank. In former times, in Europe, few people ever dared questioning the legitimacy of the monarch, especially if he/she stemmed from a house with a more or less long-standing tradition of respect for the rule of law. (Here, AT reminds us that the last generations of German monarchs, although 'absolutists', were also aufgeklärt). Over the centuries, this respect was slowly but surely bestowed on other positions as well. One of the key ingredients of the success of Northern European countries lies precisely in the reverence paid to these positions.

Whereas ministers, judges (including, in some cases, Supreme Court judges) and central bank governors are routinely fired and replaced by Latin American 'republican' presidents, no German leader would even dare to suggest such a measure against members of, say, the Bundesverfassungsgericht or the Governing Council of the European Central Bank. I know that Dr. Thiele will find this to be incredibly obvious. But it's definitely not that obvious in other parts of the world. And we owe this idea, at least in a large measure, to the monarchical principle so well articulated in Der konstituierte Staat. Finally, an equally important point regards the contribution of the monarchical principle in terms of the primacy —or not— of the 'sovereignty of the people'.

Ninenteenth-century German constitution makers, surely fearing the instability of neighbouring France, were extremely cautious in that regard. Thus German constitutions were seen as resulting from of a pact or, more likely, they were granted (oktroyert, 'otorgadas' in Spanish) by the monarch. The monarchical principle, therefore, acted as a Gegenprinzip zur Volkssouveränität, a 'counter-principle to the sovereignty of the people', and the ruler was deemed to act as guarantor of political unity, as Integrationsfigur (pp. 198 and 263). This particular element of German Verfassungskultur made a spectacular comeback in the constitution of 1949, the Grundgesetz, a point brilliantly made by Hedwig Richter when she reminds readers that the sovereignty of the people makes its first appearance in article 20, well after the statement of the primacy of the Rechtsstaat or rule of law.

Here, AT mentions the role played by France's Charte Constitutionnelle of 1814, taken as a template by German constitutionalists during the first half of the XIXth century. While rejecting the sovereignty of the people, the Charte recognized the fact that everyone, including the monarch, was bound by the laws of the land. Gathered in Frankfurt's Pauluskirche between 1848 and 1849, members of the Vorparlament wrote a constitution that was meant to be « nicht gegen, sondern mit der Monarchie » (not against, but rather with the monarchy). They knew well that the association with the crown would help them tackle the natural Legitimazionsdefizit that comes with an endeavour of such magnitude.

[TO BE CONTINUED...]

[1] See my review: "Democracy: A bold approach—Feminist, pro-capitalist and pro-checks and balances", Contrapesos, February 21, 2021.

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