Does Germany have a constitution ?

Wolfgang Münchau rightly concludes “Germany’s constitutional court has strengthened the eurosceptics” (Financial Times Feb 9 2014). That German verdict will cause new turmoil on the euro.

To complicate matters, a Dutch website wonders whether Germany really has a constitution. Their reasoning is a bit convoluted so let me try to reconstruct it.

  • The German Constitutional Court (Bundesverfassungsgericht) itself states: “The Federal Constitutional Court’s task is to ensure that all institutions of the state obey the constitution of the Federal Republic of Germany (Basic Law).” Thus, there are the two words “Constitution” (“Verfassung”) and “Basic Law” (“Grundgesetz”). Germany may not have a Verfassung yet, only a Grundgesetz. The Basic Law was imposed by the allies in 1949 and differs from a Constitution created by a sovereign people.
  • The German original uses only one word: “Das Bundesverfassungsgericht in Karlsruhe wacht über die Einhaltung des Grundgesetzes für die Bundesrepublik Deutschland.”  It subsequently continues with Verfassungswidrig (“unconstitutional”), while of course the very name Bundesverfassungsgericht indicates that the Basic Law is treated as a constitution. (Though perhaps like the “European Parliament” calls itself a “Parliament” while it isn’t.)
  • Egon Bahr relates that German Bundeskanzlers had to sign a document (elsewhere called “Kanzlerakte”) provided by the Embassies of France, UK and USA. Willy Brandt tried to refuse but then caved in (Die Zeit 21 / 2009). But this was before Moscow 1990 with the treaty of the Final Settlement of World War II.
  • After that treaty of Moscow 1990, Germany changed its Basic Law somewhat. One can argue that their changing of it, is the act of a sovereign people.

I am in favor of Real Politik and I tend to accept that the Grundgesetz functions as a Verfassung. The allied forces imposed the original Grundgesetz indeed but I would focus on the point that the new BRD changed it. Their act of changing the Grundgesetz showed that they had the sovereign right to do so, and since they treat it as their Verfassung, it is one. But it is not as protected as in other countries. Also England has no constitution but only a Magna Carta.

While that is my point of view, it will be useful to indicate the sources of confusion.

We find the Basic Law here. It indeed carries the same distinction in article 146: “This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.”  Thus the Basic Law recognises that there is no constitution yet.

In this educational page on German history we find the same conclusion in question 17: “(The document is called das Grundgesetz, which means “basic law”. It is not called die Verfassung which is the normal word for “constitution,” but it functions in every way as a normal constitution.)” The latter may be too simple. A constitution is based upon a sovereign people. The Basic Law has been imposed. Quite possibly the Germans might change the Basic Law in fundamental ways once the conditions of article 146 are fulfilled: freedom from meddling by others. Perhaps when the Germans are really free again, they abolish basic human rights and such, won’t they ?

When Germany was unified officially on October 3 1990, it is telling that its president Richard von Weizsäcker claimed: “we accomplished the unity and liberty of Germany in free self-determination”. He suggested a condition required in article 146 of the Basic Law to transform it into a constitution. But, it may be only a suggestion and political ploy. What is the real sentiment of the German people about their (imposed) “constitution” ?

The very point that Germany doesn’t have a Verfassung yet, or a document that they dare to call this, may also indicate that it does not have full freedom in self-determination yet. One can imagine that the Germans didn’t use the tedious constitutional process in the hectic days of 1990, but there has been ample time since then, and that time hasn’t been used. Why not ? Germans are gründlich, aren’t they ?

In the Treaty of Moscow 1990 we have to distinguish (1) the old Federal Republic of Germany (the West, or BRD), (2) East Germany, and (3) United Germany. The wikipedia article explains that East Germany was absorbed into the West: “Although the treaty was signed by the western and eastern German states as separate entities, it was ratified by the united Germany (the Federal Republic of Germany) per the terms of the treaty agreement.” Thus legally: United Germany = new BRD = (old BRD that absorbed the East). But still without a Verfassung, as the old BRD only had the Grundgesetz.

Wikipedia explains: “The Communist regime in East Germany fell in 1990; the parliament of the GDR (East Germany) declared the accession of the GDR according to Article 23 to the Federal Republic of Germany, making unification an act unilaterally decided by the last East German parliament. East Germany’s declaration of accession (Beitrittserklärung) included the East German territories into the field of application of the Basic Law. After the accession of East Germany to the Federal Republic of Germany Article 23 was repealed. Rather than adopting a new constitution under Article 146 of the Basic Law, the Bundestag (Parliament of Germany) only amended Article 146 and the Preamble of the Basic Law.” The process is also explained by Britannica.

The Treaty of Moscow 1990 states in article 7: “(1) The French Republic, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America hereby terminate their rights and responsibilities relating to Berlin and to Germany as a whole. As a result, the corresponding, related quadripartite agreements, decisions and practices are terminated and all related Four Power institutions are dissolved. (2) The United Germany shall have accordingly full sovereignty over its internal and external affairs.”  (US Embassy in Germany)

This may be so, but this does not preclude that there might be another hidden agreement between the USA and Germany that exists apart from the Allied Four, and that infringes upon sovereignty and blocks the possibility to actually adopt a Verfassung.

In 2007, a former head of the “German CIA” Gerd-Helmut Komossa published the book “Die deutsche Karte” (The German Card – like in poker) stating that there was such a treaty in 1949. This is a video in English. I haven’t read Komossa’s book, but the Dutch website suggests that Germany would be militarily subjugated to the USA, and would have to keep its gold stored in New York. Bloomberg reports that only 30 to 50 tons of German external holdings of 3,387 tons are “repatriated” in 2014.

The Komossa suggestion thus is that the “Kanzlerakte” mentioned by Egon Bahr continued after Moscow 1990. 

Patrick Bahners discusses aspects of actually creating a new constitution like in the USA  (F.A.Z. May 18, 2009). But there may be those hidden factors that he does not discuss.

There are two ways to reason to the awkward conclusion that Germany does not exist. (1) The old BRD didn’t have a constitution (witness Egon Bahr). The old BRD absorbed Eastern Germany. When something without a constitution absorbs something else, then it still has no constitution. Hence the new BRD is not a sovereign nation. (2) In Moscow 1990 the old BRD was abolished and the possibility of a new sovereign United Germany was created. But that possibility has not been used yet, since there is no Verfassung yet. Hence the new BRD is not a sovereign nation. Both ways of reasoning result into the awkward possibility that Germany indeed has a secret treaty with the USA.

The Dutch website that I referred to, and from where I take most of these data and weblinks, suggests that the secret treaty of 1949 has a horizon of 90 years, and that US & German policy would be to target European Unification by 2039, so that the issue of a German constitution with real German national sovereignty would not arise.

This is a nice and for me new conspiracy theory that provides another rationale for the German focus on EU integration. Another was the Red House Report in the Daily Mail 2009 for example. Perhaps we should make a list, next to the reality that Germany is too small for the world and perhaps too big for Europe.

However, this text in English suggests a horizon to 2099 rather than 2039. Another wikipedia article in German quotes Komossa and also mentions 2099 (but it is wikipedia ….). However, the wikipedia article admirably provides a link to an answer by Angela Merkel, that the “Kanzlerakte” belongs to the realm of “legends”. That is, since 1990. Legends may have a true core in history. Angela does not account for Egon Bahr. In my earlier analysis (here) Angela Merkel has misled the German people at the elections of September 2013 about the economic costs of her EU-policy, but I don’t think that she would lie about such a straightforward issue of the Kanzlerakte. Though a “secret treaty” is a secret of course ….

The Dutch website that I referred to, and from where I take most of these data and weblinks, suggests also that the current German constitution would be that of the Weimar Republic, which would automatically have been resurrected by the abolition of the Third Reich. This does not seem sensible (either). It is more reasonable to assume that the Allied Four started from scratch once Germany was conquered. It would be silly to assume that an old regime is automatically resurrected when you have conquered the territory. But I am no lawyer, of course, and those might argue anything.

These were the sources for confusion. I remain with my position that Germany has a functioning constitution.

Musing over these points, though, we arrive at these conclusions: (1) It would help when not only Angela but also Barack confirms that there is no such secret treaty of 1949 that would still apply after 1990. (2) It would help when Germany adopts a Verfassung so that they grow more aware of what they might lose from integration into the EU. It would also resolve this new “stab-in-the-back”-kind of conspiracy stories. (3) It would help when say 80% of the gold is repatriated by say 2015. See my 2005 paper that we would use the gold rather not for monetary applications. Give people medals for their contributions to society. (4) It would help when Germany would follow a more eurosceptic policy, see my other weblog entries. (5) With the upcoming turmoil that Wolfgang Münchau rightly predicts after the verdict by the German Constitutional Court, it would be useful when European countries consider my proposal for national Economic Supreme Courts. If would fit in a constitution. (6) For the upcoming turmoil, see this paper on money anyhow.

PM. Dutch readers may want to check the conspiracy theory Dutch website I have referred to. Bad economic policy breeds paranoia too. That these Dutch conspiracy theorists focus on spooks may also explain that they haven’t discovered the plain and simple censorship of science at the Dutch Central Planning Bureau yet.

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