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How the German Constitution Deals with Nazis

One of the paradoxes of democracy is that it creates freedoms which can be exploited by extremist groups to win enough votes to form a government and then destroy democracy itself from within. The most striking example of such a process is the rise to power of the National Socialist German Workers' Party (Nationalsozialistische Deutsche Arbeiterpartei, or NSDAP) in 1932-33.

©Anja Pietsch via Wikimedia Commons 


On November 9, 1918, the German Emperor William II abdicated after the country's defeat in World War I. The Social Democrat Philipp Scheidemann proclaimed the founding of a German Republic from the balcony of the parliament (Reichstag) building.¹

The German Republic is commonly known as the Weimar Republic, because the assembly that wrote its constitution met in the city of Weimar. However, its official name was "German Empire" (Deutsches Reich). As a matter of fact, Germany retained the same official name from 1871 up until 1945 despite the three political upheavals that took place within that period.²

Although the Weimar Republic was beset by a number of domestic and foreign challenges, its democratic form of government managed to endure for a decade. The National Socialists initially remained a fringe party which did not seem to have any prospect of gaining power. 

In the parliamentary elections of 20 May 1928, the NSDAP only received 2.6 percent of the vote. The largest parties were the Social Democratic Party (Sozialdemokratische Partei Deutschlands, abbr. SPD) with 29.8 percent, the Centre party (Zentrum) with 12.1 percent, and the Communist Party of Germany (Kommunistische Partei Deutschlands, abbr. KPD) with 10.6 percent. There were numerous smaller parties in the German parliament, but I will only focus on the larger ones.³

In 1929, the onset of the Great Depression caused a disastrous economic crisis in Germany. Soon afterwards, voters increasingly turned to the two major extremist, anti-democratic parties: the NSDAP and the KPD. 

In the elections of 14 September 1930, the NSDAP got 18.3 percent of the vote and became the second-largest party behind the SPD, which stood at 24.5 percent. The KPD received 13.1 percent and the Zentrum 11.8 percent of the vote.⁴

But two years later, in the elections of 31 July 1932, the NSDAP won in a landslide, garnering 37.3 percent of the vote, by far the largest party in parliament. The SPD got 21.6 percent, the KPD 14.3 percent, and the Zentrum 12.5 percent. 

The NSDAP and the KPD held more than half of all seats. The anti-democratic parties thus controlled the parliament.⁵ 

In the next election on 9 November 1932, the NSDAP fell to 33.1 percent of the vote. The SPD gained 20.4 percent, the KPD 16.9 percent, and the Zentrum 11.9 percent.⁶

Even though the NSDAP was slightly weakened by the electoral result, on 30 January 1933 the ultraconservative German President Paul von Hindenburg invited Hitler to form a government, and he was appointed Chancellor.⁷

On February 1, Hindenburg dissolved parliament. After the KPD called for a general strike, on February 4 he signed Hitler's emergency decree "for the protection of the German people", which gave the government the power to ban assemblies and publications. 

On the evening of February 27, the Reichstag building burnt down. The police arrested a Dutch man named Marinus van der Lubbe, who admitted to the crime but insisted that he had acted alone. The National Socialists, however, claimed - without evidence - that the fire was the beginning of a Communist uprising.⁸ ⁹

The Hitler government quickly issued an emergency decree "for the protection of the people and the state" ("zum Schutze von Volk und Staat") which suspended the right to assembly, freedom of speech, freedom of the press, and other constitutional protections. It further allowed the regime to arrest and imprison political opponents without charge, to dissolve political organizations, to confiscate private property, to overrule state and local laws, and to replace state and local governments. The decree remained in effect until May 1945.

Officials, members of parliament and members of the KPD and SPD were taken into "protective custody". The first concentration camps were set up. 

The national elections of 5 March 1933 were no longer free. The arrest of leading Social Democratic and Communist politicians, the restrictions on speech, press and assembly, as well as outright violence marred the election campaign. Despite their persecution of political opponents and their total control over the state and the press, the Nazis won only 43.9 percent of the vote, failing to gain an absolute majority. Nevertheless, they proceeded to dismantle what remained of the democratic system. 

On 23 March 1933 the Hitler government introduced to parliament the so-called "Enabling Act", officially called "Gesetz zur Behebung der Not von Volk und Reich" ("Law for the Remedy of the Distress of the People and the Reich").

It empowered the government to enact laws without the approval of parliament  and without the signature of the President. Conservative lawmakers bowed to pressure from the Nazis. Parliament voted in favour of the "Enabling Act", and by doing so the democratically elected legislature abolished itself.  

All 81 lawmakers from the KPD and 26 lawmakers from the SPD could not take part in the vote because they had been arrested or had fled the country. The remaining SPD members voted against the Enabling Act - the only parliamentary group to oppose Hitler's power grab. 

The emergency decrees and the Enabling Act formed the "legal" basis for the Nazi dictatorship. 

The absolute rule of the Nazi regime ended only with Germany's defeat in World War II. As the Soviet Red Army conquered the capital Berlin, Adolf Hitler committed suicide in the afternoon of 30 April 1945. His designated successor was Grand Admiral Karl Dönitz. 

With the country destroyed and occupied by Allied forces, the Nazi authorities signed the unconditional surrender in two separate ceremonies before Allied commanders on May 7 and 8, 1945.¹⁰

The four victorious powers took over Germany and divided it into four zones of occupation (Besatzungszonen). But soon a rift opened between the western Allies and the Soviet Union, which would lead to the Cold War. 

From February 23 to June 2, 1948, representatives of the United States, Great Britain, France and the Benelux countries (Belgium, Netherlands and Luxembourg) met at the so-called "Six-Power Conference" in London. The participants decided to form a West German state within the anti-Soviet western alliance.¹¹ ¹²

On July 1, 1948, the Allied military governors presented the "Frankfurt Documents" to the prime ministers of Germany's western zones. They were tasked with convening a constituent assembly that should draw up a constitution for a federal democratic state.

On September 1, 1948, invited guests gathered at the Koenig Zoological Museum in the city of Bonn. It was one of the few buildings in Bonn that had not been destroyed in World War II. 

After the opening ceremony, the Parliamentary Council met at the Pedagogical Academy in Bonn. The members elected as their President the future Federal Chancellor Konrad Adenauer of the Christian Democratic Union (CDU). 

On May 23, 1949, the Basic Law of the Federal Republic of Germany was signed and promulgated in a plenary session of the Parliamentary Council.¹⁴

The framers of the Basic Law were fully aware of the challenge that stood before them. They had witnessed the rise of the NSDAP and the demise of the Weimar Republic. 

Konrad Adenauer himself had been a supporter of the Weimar Republic and an opponent of the Nazis. He had been elected mayor of the city of Cologne back in 1917. But on March 13, 1933, Nazi squads marched on Cologne's City Hall and deposed him. Faced with threats and smear campaigns from the Nazis, he left the city. He was later expelled from the civil service and his pension was cut. 

On June 30, 1934, the day of the Röhm Putsch, Adenauer was arrested in Neubabelsberg, but released shortly thereafter. For the following years he lived a secluded life with his family in the village of Rhöndorf, subjected to occasional Nazi harassment. 

On July 20, 1944, a group of military officers attempted to assassinate Hitler by planting a bomb in his headquarters. The plan failed and the regime arrested and executed the participants. Though Adenauer had not been involved in the plot, he was detained by the Gestapo. After he managed to escape, his wife Gussie was imprisoned in Cologne-Brauweiler. Under pressure and fearing for her children, she revealed her husband's whereabouts. She then attempted to commit suicide. Adenauer was caught and spent two months in prison. He was again freed in November 1944.¹⁵ ¹⁶

Ironically, when he was mayor of Cologne, Adenauer had treated both the Nazis and the Communists with tolerance, just like any other legal political organisation. For example, he had refused to comply with a decree by the Prussian Interior Minister Carl Severing of December 27, 1930, according to which municipal sports fields and gymnasiums should not be rented to anti-state organisations such as the NSDAP or the KPD. 

The conundrum for the framers of West Germany's Basic Law was exactly how to deal with political organisations whose purpose was to seize power and destroy democracy. Their answer was to establish the principle that democratic freedoms to participate in politics could only be extended to those who uphold the democratic principles enshrined in the Basic Law. 

Article 21 of the Basic Law declares: 

"(1) Parties are involved in the formation of the political will of the people. Freedom to found parties is guaranteed. Their internal order must follow democratic principles. They must publicly account for the origin and use of their funds and their assets.

(2) Parties which, based on their goals or the behavior of their supporters, seek to impair or eliminate the free democratic basic order or to endanger the existence of the Federal Republic of Germany, are unconstitutional.

(3) Parties which, based on their goals or the behavior of their supporters, aim to impair or eliminate the free democratic basic order or to endanger the existence of the Federal Republic of Germany are excluded from state funding. If their exclusion is determined, tax relief and financial contributions for these parties will no longer apply.

(4) The Federal Constitutional Court decides on the question of unconstitutionality according to paragraph 2 and on the exclusion of state funding according to paragraph 3.

(5) Federal laws regulate the details."¹⁷

The German Criminal Code

(§ 86) prohibits the "dissemination of propaganda materials of unconstitutional and terrorist organizations", including those of the National Socialist Workers' Party and its successors.

According to Criminal Code § 86a, disseminating or using publicly any "flags, insignia, uniforms, slogans and forms of greeting" of unconstitutional and terrorist organisations is punishable by 3 years in prison or a fine.¹⁸

The country's Supreme Court has banned extremist parties on the basis of Article 21 in the past. For example, in October 1952 it ruled that the "Socialist Imperial Party" (Sozialistische Reichspartei) was a "successor organisation" of the National Socialist Party and therefore unconstitutional. In its opinion the Supreme Court stated:

"The constitutional legislature ... guarantees the free formation and activity of political parties. But it has denied these freedoms to parties that do not recognize the fundamental principles of democracy and want to misuse the formal means of democracy to abolish the free-democratic basic order. In order to avert the danger of abuse of a party ban, [the constitutional legislature] did not place the decision on the question of the constitutionality of parties in the hands of the executive or the legislative bodies, but transferred it to the Federal Constitutional Court and outlined the factual prerequisites for such a determination.

"The formulation of Art. 21 of the Basic Law has drawn the lesson from the bitter experiences of the recent past. The process of undermining and finally eliminating democracy by the National Socialists should not be repeated in this or any similar form, and the arbitrary suppression of other parties by the executive, as practiced by the National Socialist regime, should be excluded in the same way. The verdict of the Federal Constitutional Court is of particular importance because it involves a party founded by incorrigible National Socialists and exposes the SRP as a successor organisation to the NSDAP."¹⁹

The rise of the far right in recent years poses a new challenge to Germany's constitutional framework. 

The party Alternative for Germany (AfD), which espouses an ethnonationalist, islamophobic, pro-Putin ideology,²⁰ ²¹ has reached its highest popularity in the polls over the past few months. 

In July 2023, the AfD polled at 20 percent, just behind the Christian Democrats at 28 percent. The AfD would become the second-largest party in parliament if this scenario materialised. Meanwhile, the Social Democrats have fallen to 18 percent, the Greens to 14 percent, and the Free Democrats remain at 7 percent.²²

Germany's Federal Office for the Protection of the Constitution keeps the AfD under surveillance due to its alleged anti-constitutional principles. German courts have upheld the agency's decision to treat the AfD as a possible far right extremist organisation.²³

The President of the Federal Office for the Protection of the Constitution, Thomas Haldenwang, told the German Press Agency on July 30 that "individuals who have attracted attention in the past with positions that are not compatible with our free democratic basic order will belong to the AfD delegation in the coming European Parliament."²⁴

Even though the German Constitution puts the power to determine the constitutionality of parties and organisations in the hands of the judiciary, it would be misleading to think that this process can be apolitical. It is an open question if the courts would be able to hold to account a party that enjoys the support of 20 percent of the population. 

In June 2023 Ronen Steinke, a jurist and editor of the newspaper Süddeutsche Zeitung, wrote in an op-ed that the Federal Office for the Protection of the Constitution should not keep the AfD under surveillance, and that the agency should be abolished altogether. 

"This secret service - even if it bears the beautiful name of the Office for the Protection of the Constitution - does not protect liberal democracy. It weakens it. It would be better to give it up," Steinke argued, comparing the agency to what happens in dictatorships.²⁵

Which takes us back to the paradox of democracy. Although the German Constitution was designed to protect democracy from assaults by extremist groups whose ideology is opposed to democracy and human rights, it remains to be seen whether it can be an effective bulwark against extremism. 

If a large number of citizens hate the status quo, if they neither understand nor want constitutional safeguards against authoritarianism, how can a democratic constitution prevail against its enemies


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