If we ask about the protection mechanisms that the Basic Law has given itself, two different norms or sets of norms immediately come to mind. They are linked by the fact that both are constitutional protection provisions - constitutional protection understood here in the broadest possible sense. These two complexes are often mentioned in the same breath, and are often even identified with each other. In fact, however, they are two quite different regulations that partly overlap in terms of the subject matter they protect. What is at stake?
Article 79(3) of the Basic Law and defensive democracy
On the one hand, it concerns Art. 79 para. 3 GG, the so-called eternity clause of the Basic Law. It removes certain normative content from the reach of the legislature amending the constitution and to this extent places it under perpetuity protection. Apart from the basic federal order of the Basic Law, which is mentioned several times in Art. 79 para. 3 GG, it is above all the principles of Art. 1 and 20 GG that are covered by the guarantee of eternity - Art. 1 and 20 GG, mind you, not (typical beginner's mistake in the first or second semester of law) Art. 1 to 20 GG! Article 1 of the Basic Law thus guarantees human dignity, human rights and the direct application of fundamental rights, while Article 20 of the Basic Law guarantees the constitutional principles of democracy, the rule of law and the welfare state, the republic and the federal state. It is therefore not only, but also and perhaps above all, about the institutional safeguarding of the preconditions for the existence of constitutional freedom.
What is the point of this provision? The fathers and mothers of the Basic Law were not naïve enough to believe that they had erected a solid wall against revolutionary upheavals of all kinds or even against a broad anti-democratic majority in the people and parliament. Because of course a constitutional norm can
prevent a revolutionary emergency. But, mindful of historical experience, the aim was to mark a break with the system, to tear the mask of legality off the face of a conceivable fundamental change and to remove the protection of apparent legality. The new order should not present itself as a formal-legal further development of the existing one and be able to borrow legitimising credit from it, but rather be forced to demonstrate its own criteria of legitimacy and normative self-standing. Or to put it quite simply: the fundamental process of change should not hide behind the legitimacy of the Basic Law.
It is important to note that Art. 79 para. 3 GG is addressed to the legislator amending the constitution. It is bound. It is subject to insurmountable material barriers. The potential danger that the norm is intended to control therefore emanates from the Bundesrat and the Bundestag. The norm is not only directed against the intended breach of the constitution or against the deliberate violation of certain constitutional principles, but also against the legislator who, to a certain extent, errs and violates one of the aforementioned principles despite the lack of subversive intentions. We must note, however, that in the 75-year history of the Basic Law, despite countless amendments, not a single one has ever been criticised by the Federal Constitutional Court as a violation of the guarantee of eternity.
The second regulatory complex that can be addressed as a self-protection mechanism is the defence of democracy, which is expressed above all in the norms of Articles 9(2), 18 and 21(2) of the Basic Law. The most important difference to the eternity clause is the addressee of these norms. For now it is not a question of protecting the constitution from state institutions and their standardisation, but of social actors. It is private individuals or associations or even political parties that are targeted and, if necessary, excluded from the context of political discussion and communication. In a nutshell, the value of Article 79(3) of the Basic Law increases to the defensibility of Articles 9, 18 and 21 of the Basic Law. While the guarantee of eternity removes fundamental structural principles of the constitution from the disposal of the state organs, the defensive democracy restricts the formation of will in society.
The fact that this access to the social basis of democracy is a major problem will be discussed in more detail in a moment. Firstly, however, we would like to note the second difference to the perpetuity clause, namely that the object of protection of the two is not identical. The object of protection of the norms of defence-oriented democracy is the free democratic basic order of the Basic Law. This is understood to mean the central elements of the rule of law and democracy - no more, but also no less. However, as we have seen, Article 79(3) of the Basic Law also protects the welfare state, the republic and the federal state. The radius is obviously wider than that of a defensive democracy. There are, however, unitary states that are undoubtedly constitutional democracies, if we only think of France or Great Britain. And quite a few member states of the European Union are not republics, but constitutional monarchies, without this being able to change anything about their qualification as democratic constitutional states.
So much for an initial orientation and categorisation. In the following, the description is limited to defensive democracy because, firstly, this raises more problems than Article 79(3) of the Basic Law and, secondly, the current debates focus entirely on this protective mechanism.
The concept of defensive democracy
So let us now ask about the concept of defence-oriented democracy. On what considerations is it based? When and by whom was it developed? What are its premises?
The means of defensive democracy are an attempt to respond to the problem that the freedoms in a democratic state system can also be used to undermine or even destroy this freedom. However, it would be a little short-sighted to reduce this solely to the formula "No freedom for the enemies of freedom", as is sometimes the case in public debate. After all, it is worrying that this formula is attributed to Saint-Just, one of the most intellectual and at the same time most bloodthirsty minds of the French Revolution. The fact that such instruments are relatively unknown in the USA and France should also give pause for thought.
It is obvious, however, that the norms of defensive democracy can be explained as a response to the experiences of the Weimar Republic and the Nazi era. As far as Weimar is concerned, however, it should be remembered that this republic was by no means as defenceless as is generally assumed. In 1922, for example, the NSDAP was banned in several states, and after the failed putsch in Munich, a nationwide ban followed in 1923. However, party bans were not used consistently and universally. In most cases, the federal states dominated, and the parties were able to go country hopping: If they were banned in Prussia, they simply moved their activities to Bavaria. The trauma of National Socialism, on the other hand, is inextricably linked to the slogans of Joseph Goebbels, who even before 1933 loudly proclaimed that democracy would be defeated by its own means. His words from 1928 are often quoted: "We are going into the Reichstag to supply ourselves with democracy's own weapons in its armoury."
The aim was to arm oneself against these forms of utilising democratic options to the detriment of the democratic order with the instruments of defensive democracy. It was no coincidence that the emigrated German lawyer and political scientist Karl Loewenstein provided a kind of intellectual justification in the interwar period. In 1938, he published a two-part essay in the American Political Science Review with the programmatic title Militant Democracy and Fundamental Rights. He had already formulated its core ideas at the constitutional law conference in Halle in 1931 as part of a discussion paper:
"Furthermore, remedial action should be taken against the sabotage of the formation of the will of the state in parliament itself. The state has the duty of self-preservation to defend itself against the parliamentary apparatus being placed at the disposal of the very parties that have made it their programme to smash this apparatus. [...] The parties that reject parliamentarism programmatically and by deed should be excluded from its use altogether..." (VVDStRL 7 [1932], p. 192 f. [193]).
Loewenstein's fundamental considerations were then taken up by the Parliamentary Council in 1948/49. According to Carlo Schmid, for example, "it is not part of the concept of democracy [...] that it itself creates the conditions for its elimination. [...] One must also have the courage to be intolerant towards those who want to use democracy to kill it."
And what applied to political parties was to apply in parallel to associations. Finally, Article 18 also included individuals in the concept, for whom fundamental rights were to be forfeited if they were used to fight against the free democratic basic order and thus abused.
The objection of self-contradiction
As plausible and evident as this may sound - or even just sound - the concept has to put up with one objection, and that is the objection of self-contradiction. After all, it could perhaps be summarised as follows: If democracy is based on the free debate between individuals, interest groups, associations, political parties and other participants in the decision-making process of society as a whole, and if the position that is ultimately to prevail is the one that is able to gain majority support - be it among the people or in parliament - is it not contradictory to exclude one or perhaps several of the associations or political parties from this opinion and decision-making process? If democracy places state power in the hands of the people, can and may it exclude certain parts of it again? Can democracy turn against itself? Aren't political rivals simply taken out of the game here? Can it be democratic or compatible with democratic positions to ban other parties?
The Federal Constitutional Court took this objection very seriously in its judgement banning the KPD. It speaks of a tense relationship between the prohibition provision of Article 21 (2) of the Basic Law and political freedom of opinion, "without question one of the most noble legal interests of every liberal democracy":
"A state that describes its constitutional order as liberal-democratic and thus places it in the great constitutional-historical line of development of liberal constitutional democracy must develop from the fundamental right of freedom of expression a fundamental right of free political activity and thus also the free formation of political parties, as has been done in Article 21 (1) of the Basic Law. For it is one of the fundamental views of liberal democracy that only the constant intellectual debate between the social forces and interests that meet, the political ideas and thus also the political parties that represent them is the right way to form the will of the state [...]. If this idea is consistently implemented, the representatives of every political conception should be given the opportunity to organise themselves in the form of a political party and to campaign for the implementation of their political views. It cannot be denied that the elimination of a political party from political life, not through the will of the voters in the process of state decision-making, but through state intervention, is at least theoretically in contradiction to this consequence." (BVerfGE 5, 85 [134 f.]).
And then the court goes one step further in its arguments by posing the question of whether the prohibition in Article 21(2) of the Basic Law might not in turn be
violates the principle of democracy. The court says:
"For the Federal Constitutional Court, however, the question arises as to whether the fundamental importance of the basic right of political freedom of opinion in the free democratic basic order permits a provision such as Art. 21 para. 2 of the Basic Law, in other words, whether a liberal democratic constitution that restricts one of its own fundamental values, the political freedom of opinion, to such an extent in order to protect it, does not thereby fall into such an intolerable self-contradiction that the restrictive provision itself would have to be regarded as 'unconstitutional', i.e. as contradicting a fundamental principle of the constitution against which the individual positive constitutional provisions can and must also be measured."
(BVerfGE 5, 85 [137]).
It is not surprising that the court ultimately denies this consideration, but it is nevertheless remarkable how thoroughly the idea of a possible self-contradiction is explored here. Why does it not prevail? Ultimately, the court declares the emergence of totalitarian parties to be decisive. These are not content with the free play of political forces as the natural internal principle of movement of liberal democracy.
"The natural aspiration of every political party to influence the state apparatus of power becomes, in the case of these parties, a claim to 'seize power', which, if achieved, must by its very nature be aimed at eliminating all other political tendencies [...]. In a liberal democracy [...] a neutral attitude towards such parties is no longer possible [...]." (BVerfGE 5, 85 [135]).
The court then reconstructs the insertion of Article 21(2) of the Basic Law by the Parliamentary Council and states:
"The attitude of the Basic Law towards political parties [...] is only understandable against the background of the experiences of the struggle with this totalitarian system. [...] If, on the one hand, the Basic Law still follows the traditional liberal-democratic line, which demands fundamental tolerance towards political parties, it no longer goes so far as to renounce the establishment and protection of its own system of values out of mere impartiality. From the pluralism of goals and values that have taken shape in the political parties, it extracts certain basic principles of state organisation which, once they have been democratically approved, are to be recognised as absolute values and therefore resolutely defended against all attacks; insofar as restrictions on the political freedom of action of opponents are necessary for the purpose of this defence, they are accepted. The Basic Law has thus deliberately attempted a synthesis between the principle of tolerance towards all political views and the commitment to certain inviolable fundamental values of the state order. Article 21.2 of the Basic Law is thus not in contradiction with a fundamental principle of the Constitution; it is an expression of the conscious constitutional will to solve a borderline problem of the free democratic state order, a reflection of the experience of a constitutional legislator who, in a certain historical situation, no longer believed that he could purely realise the principle of the neutrality of the state vis-à-vis political parties, a commitment to a - in this sense - 'controversial democracy'." (BVerfGE 5, 85 [138 f.]).
Decades later, the court formulated its judgement in a similar way, but more decisively and confidently:
"This concept of protecting freedom by restricting freedom does not contradict the fundamental decision of the Constitution in Art. 20 para. 2 GG in favour of a process of state-free and open formation of opinion and will from the people to the state organs (cf. BVerfGE 20, 56 [100]; 107, 339 [361]). In order to permanently establish a liberal democratic order, the Basic Law does not also want to guarantee the freedom to eliminate the prerequisites of liberal democracy and to abuse the freedom granted to abolish this order." (BVerfGE 144, 20 [195 para. 515]). And it adds: "If a political party endeavours to eliminate this order, its prohibition is not aimed at a restriction, but at guaranteeing democracy and the sovereignty of the people. The [...] limitation of democratic participation rights, if they are directed against the free democratic basic order, are therefore not only to be understood as barriers set from outside, but rather also as an expression of a self-restriction inherent in the principle of democracy, in that they are intended to guarantee a lasting democracy."
(BVerfGE 144, 20 [196 para. 517]).
This would therefore defend the concept of defensive democracy against the objection of self-contradiction. However, it remains remarkable how much effort the court puts into this argument - and also that it identifies a "borderline problem" of constitutional law here (KPD judgement) and spoke of a "double-edged" sword in the NPD ban proceedings from 2017 and that the party ban represents "a serious encroachment on the freedom of political decision-making". The methodological principle of interpreting the provision restrictively was also derived from this
(BVerfGE 144, 20 [200 et seq. para. 523 et seq.]).
The instruments of defensive democracy
Let us now move from theory to practice, from conception to empiricism. Let's take a look at how often the relevant standards were applied and how they were interpreted in more detail.
Forfeiture of fundamental rights
We can be brief about the forfeiture of fundamental rights. There has not been a single case of application in the history of the Federal Republic of Germany. A few applications have come to nothing. Why is that? On the one hand, certainly because of the high formal hurdle: a forfeiture of fundamental rights can only be pronounced by the Federal Constitutional Court. Secondly, however, it is probably also due to the internal problems of this norm, so to speak. How can a forfeiture actually be conceptualised? What restrictions does the state have that it would not normally have? And if the fundamental rights of the Basic Law are forfeited, does this also include the fundamental rights under the state constitutions or the ECHR and the EU Charter of Fundamental Rights? Is the person affected not - as would otherwise be the case - entitled to fall back on the fundamental right of recourse under Article 2 (1) of the Basic Law?
As you can see, the standard raises more questions than it solves. In his commentary on the norm, Fabian Wittreck has vividly stated that its "net combat value tends towards zero" and that the hopes in the Parliamentary Council that it could be used to prosecute enemies of liberal democracy with practically no obligation to the fundamental rights forfeited have proven to be an "illusion". This can be read in more detail in the Grundgesetz-Kommentar, 3rd edition, vol. 1, Tübingen 2013, Art. 18 para. 29, 56, edited by Horst Dreier. It is therefore a bold prediction that it is unlikely to come to life in the future - Björn Höcke or no Björn Höcke.
Prohibitions on association
The situation is quite different when it comes to the prohibition of associations under Article 9(2) of the Basic Law. According to one author's count, there are now more than 150 such bans. One striking reason for this high number is that it is not the Federal Constitutional Court that makes the prohibition decision, but the interior ministers of the federal states or - if the organisation is active nationwide - the Federal Ministry of the Interior. Of course, legal action can then be taken against these decisions and ultimately a constitutional complaint can be lodged with the Federal Constitutional Court, which is also regularly done. In the 1980s, it was mainly right-wing extremist groups such as the Hoffmann military sports group. More recently, relevant cases of bans have also been recruited from this area, as shown by the ban on Combat 18 and Sturm-/Wolfsbrigade 44 in 2020 and the ban on Hammerskins Deutschland issued a year later. The ban on the Reichsbürgervereinigung Geeinte deutsche Völker und Stämme, which was also imposed in 2020, was particularly prominent.
From the extreme left, only the ban of linksunten/indymedia from 2017 can be recorded. However, the number of Islamist and foreign-related organisations banned has increased significantly in recent years: the Salafist association Millatu Ibrahim was banned in 2012, followed by the Salafist association DawaFFM in 2013 and Islamic State a year later. In 2016, the Salafist organisation Die Wahre Religion (DWR) was banned.
The ban on Hamas in November 2023 can serve as an example of foreign-related non-Islamist extremism; the International Humanitarian Aid Organisation e.V., which supported Hamas' so-called social associations in particular, was already banned in 2010. These examples may suffice to outline the breadth and diversity of the relevant bans on associations.
These bans were predominantly based on the second alternative of Article 9(2) of the Basic Law, i.e. the fight against the "constitutional order". Constitutional order here means the same as the free democratic basic order referred to in Articles 18 and 21 of the Basic Law. It is therefore only about the absolute core content of the Basic Law, which includes the guarantee of human dignity, the principle of democracy and the principle of the rule of law. The Federal Constitutional Court has consistently emphasised in its case law that this prohibition is only a prohibition of organisation, not a prohibition of opinion. Even the dissemination of anti-constitutional ideas or corresponding views does not in itself cross the boundary of free political debate. In other words, it is perfectly possible to reject the values and basic principles of the Basic Law and to express this (peacefully). Thoughts are free, and opinions remain so. Only when aggressively militant agitation directed towards the outside world or even behaviour relevant under criminal law is added to this is the path clear for a ban. A quote from a landmark court ruling from 2018 makes this clear:
"According to Art. 9 para. 2 GG, an association must be 'directed' against these elementary principles. Its prohibition cannot be justified simply because it criticises or rejects these principles or advocates a different order. Art. 9 para. 2 GG is [...] not a prohibition of ideology or convictions and is not aimed at inner attitudes or specific political convictions [...]. Even the dissemination of anti-constitutional ideas or certain political views does not in itself cross the boundary of free political debate [...]. Therefore, the decisive factor in justifying a ban on association is whether the association as such adopts a militant-aggressive stance towards the elementary principles of the constitution [...]." (BVerfGE 149, 160 [197 f. para. 108]).
However, it is also clear how difficult it is in some cases to draw the line between mere conviction and commitment and categorisation as an aggressive, militant stance. Just think of the pro-Palestinian demonstrations in Hamburg in mid-May 2024 with provocative posters such as "The caliphate is the solution". The Hamburg Senate faced fierce political criticism because - quite understandably - it could not recognise any possibility of a ban on assembly or association. It can be assumed that the judgement of the Federal Constitutional Court played a central role in this assessment.
Party bans
The situation is not much different when it comes to party bans. Firstly, back to the empirical evidence: so far there have only been two such bans in the Federal Republic of Germany, namely the banning of the SRP in 1952, which was clearly in the tradition of National Socialism, and the KPD four years later. The first ban procedure against the NPD in 2003 failed because there was no guarantee that their actions were not perhaps co-organised by employees of the Office for the Protection of the Constitution. In the second ban proceedings in 2017, the court ruled that the party was clearly unconstitutional, but refrained from banning it because the NPD clearly did not have the potential to jeopardise the free democratic basic order.
What has been said about the distinction between mere bans on organisation and bans on convictions also applies here. And here too, it is not easy to walk the tightrope between the two forms. On the one hand, criticism, even radical criticism of the system, is perfectly permissible. One may reject the state and its fundamental principles. It is seen as necessary to cross the threshold to combat the free democratic basic order. On the other hand, it is clear that people are subject to the ban if they commit criminal offences in order to achieve their goals. But criminal offences are not a prerequisite for a ban. If this were to be required, it would not sufficiently take into account the preventive nature of the prohibition norm. The ban can therefore also be based on legally compliant behaviour. As with the prohibition of association, the decisive factor is the party's aggressive and militant attitude. What is required is a planned action in the sense of a "qualified preparatory act for the impairment or elimination of the free democratic basic order" (BVerfGE 144, 20 [219 para. 570]). In other words:
"The party must therefore go beyond 'professing' its own (anti-constitutional) goals and cross the line into 'combating' the free democratic state order [...]." (BVerfGE 144, 20 [220 para. 573]).
Naturally, it is not easy to determine the boundary between merely professing one's own convictions and combating the protected interests of Article 21(2) of the Basic Law. No violation of the law, but still a reason for prohibition? How exactly should this be conceptualised?
The court offers only a few references. The only specific constellation mentioned is the creation of an "atmosphere of fear" that leads or could lead to "a noticeable impairment of the freedom of the process of political decision-making" (BVerfGE 144, 20 Ls. 6 d and
p. 340 para. 933). However, this could not be established in the decision. All of this shows all too clearly how demanding party prohibition proceedings are and how high the hurdles to be overcome are.
Protection of the constitution by civil society
At the beginning, it was mentioned that Article 79(3) of the Basic Law and the norms of defensive democracy could also be categorised as constitutional protection provisions if the term is defined very broadly. The usual, much narrower concept of the protection of the constitution is essentially aimed at the federal and state authorities, which collect information on anti-constitutional activities of individuals, associations or parties without having any operational means of action themselves. That may be good and useful. But something else is crucial. No constitution in the world can survive if it is not supported by the citizens of the state. There can be no democracy without democrats, no republic without republicans. It is about utilising the opportunities offered by the liberal constitution, exercising one's freedom of opinion, association and assembly, being active in political parties and standing up to extremists from the left and right in public speech. The best guarantee of a free democratic state lies in the attitude of its citizens, as the Federal Constitutional Court rightly said in its judgement on the KPD. A committed, open and pluralistic democracy is also its best protection. In other words, it depends on us as responsible citizens.
