Leiden Law Blog

The German eternity clause, militant democracy and democratic sovereignty

The German eternity clause, militant democracy and democratic sovereignty

On 8 November 1923, Adolf Hitler, First World War hero General Erich Ludendorff and some accomplices initiated the so-called ‘Bierhall-putsch’ in Munich. Although the putsch was unsuccessful, Hitler gained an important insight: if he wanted to seize power in Germany, he had to follow the ‘legal path’. He had to pursue a legal revolution; he had to use, or rather misuse, the democratic system in order to destroy it. At that time, Hitler’s Nationalsozialistische Deutsche Arbeiterspartei (NSDAP) was only a small grouping and it seemed highly unlikely that this legal revolution could actually be carried out. However, in the following years, the NSDAP grew significantly until it became Germany’s largest political party in July 1932. On 30 January 1933, Hitler was appointed Chancellor. Although the nationalist coalition believed that this would constrain his power, this turned out to be a crucial miscalculation.

On 23 March 1933, in an atmosphere of intimidation and terror, the Enabling Act [Ermächtigungsgesetz] was approved by the Reichstag. This Act was basically the legal foundation of the Third Reich which made it possible for Hitler and the Nazis to rule without the Reichstag. It indicated the end of Weimar Germany and its parliamentary democracy. By August 1934, Hitler’s legal revolution was completed: he had acquired absolute power over Germany.

Hitler’s power seizure has become the classic example of a democracy that destroys itself with its own means. Hitler analysed the democratic system and detected its weaknesses. Subsequently, he used these weaknesses and turned them against the democratic system itself. Already in 1937, Karl Loewenstein argued that democracy had to become ‘militant’ in order to prevent ‘new Hitlers’ in the future. Loewenstein’s two articles – ‘Militant Democracy and Fundamental Rights I’ and ‘Militant Democracy and Fundamental Rights II’ (both published in 1937) – marked the start of the tradition of so-called ‘militant democracy’. In brief, militant democracy refers to the principle that democracy has to be able to defend itself against its enemies. The German democracy of 1933 was powerless against Hitler and its NSDAP. Other democracies have to be able to take the necessary measures to prevent such power seizures in the future.

This broad description, which composes the core of militant democracy theory, does not answer the question of how democracy should actually defend itself. This question became particularly important in West Germany, where a new constitution had to be established after the Second World War. One of the central aims of this constitution was to make new democratic power seizures impossible. In this light, the eternity clause [Ewigkeitsklausel] in the German Constitution of 1947 was formulated.

The eternity clause is laid down in Article 79(3) of the German Constitution and declares some principles unalienable: the democracy principle (which is described in Article 20 of the German Constitution), the federal structure and the principle of human dignity (which is specified in Article 1 of the German Constitution). With reference to the aforementioned militant democracy doctrine, the combination of Article 20 and 79(3) of the Germany Constitution is particularly interesting. It declares the Federal Republic a democracy until the end of time – it establishes, at least on paper, an ‘eternal democracy’.

In the light of the horrific events of the Second World War, which were a direct consequence of Hitler’s power seizure, the eternity clause seems a plausible response. However, one could ask whether this eternity clause is actually a just representation of democratic sovereignty. Is sovereignty a static principle which can be declared sacred through an article in a constitution? Or is it rather a dynamic principle which cannot be captured in an article such as 79(3) of the German Constitution?

Most questions related to militant democracy focus on the so-called ‘democratic paradox’ (how to justify antidemocratic measures to defend democracy?), or on the practical dimension of militant democracy (when is an antidemocratic party to be declared unconstitutional and by whom?). Questions about the relation between democratic sovereignty and clauses such as the eternity clause are yet to be answered. These questions are specifically compelling with reference to recent events in Poland, Hungary and Turkey, where democracy, as well as the rule of law, is currently under threat. These affairs raise the question of whether a clause like the eternity clause would be an accurate response in order to protect these and other democracies. In my dissertation, I will focus on answering these questions.

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