With the thesis that “sovereign is he who ensures normal conditions,” the artist Bazon Brock corrected the constitutional jurist Carl Schmitt’s dictum. Schmitt, in his Political Theology of 1922, had wished to locate political sovereignty in the person who makes the decision on the state of exception. Thus – after correcting for Schmitt’s one-sided decisionistic emphasis – sovereign would be he who provides the conditions for the possibility of political and social normality. On this view, the Parlamentarischer Rat [Tr. – “Parliamentary Council”] that had been commissioned to develop a West German constitution was a credible sovereign, when, although still under the oversight and guidance of the three victorious Western powers, it decided to hold an opening ceremony on September 1, 1948, in the vestibule of the Alexander Koenig Research Museum in Bonn. The choice of this site to open the most important convention for facilitating normalization in recent German history occurred for mostly practical reasons (at the time, the city of Bonn did not have any other suitably prestigious spaces), yet it was not entirely pointless to choose it as the genius loci. The building had once before been a site for dealing with the consequences of war – shortly after it was completed, it had been seized in 1914 by the German state and functioned as a military hospital until the end of the First World War. The fact that the momentous process of authoring a constitution was begun in the presence of a stuffed giraffe, whose removal from the hall had proven to be impossible, is to be considered one of the symbolic oddities of the ceremonial gathering – which is why this mute representative of the animal world was covered with cloth for the duration of the opening ceremony.
What sovereignty can mean under constrained conditions was apparent even in the choice of locale for the subsequent work sessions of the plenum and of the committees of the Parlamentarischer Rat: postwar German democracy was launched in a Hochschule for the education of teachers, the Bonn Pädagogischen Akademie, founded between 1930 and 1933 according to designs by Martin Witte in the post-objectivist style. It was a building that from 1949 on became the oft-renovated and frequently extended Bundeshaus [Tr. – “federal parliament building”]. Even here we should note a powerful expression of political symbolism: a striking feature of the nascent German understanding of the state then articulating itself was to conceive of democracy as a process of continuing education and self-instruction open to correction and unable, in principle, to be concluded.
Sovereign also is he who decides on the date when the will to normalization is proclaimed. It was anything but an accident that the vote on the adoption of the “Constitution of the Federal Republic of Germany” – which, deliberately provisional, was not yet to be understood as a constitution for the entire nation – was held on May 8, 1949.1 On this day, after numerous amendments, the Constitution was passed about five minutes before midnight with a majority of fifty-three votes for and twelve votes against. (Four days later the Western military governors gave their consent to the Parliaments of the federal states to approve the plan in the subsequent days, so that it could be proclaimed and implemented on May 23. The only exception was the Bavarian state, which was hoping for a stronger federal emphasis.)
The choice of May 8 as the date for the deciding vote was supposed to indicate that the day for the unconditional capitulation of Hitler’s Reich to the “founding fathers of the Constitution” – as well as four women (out of 65 people) convened at the constitutional convention – should be not merely thought of as a day of defeat, but even more as a moment for a new beginning under radically different auspices. The politically symbolic dimension of adopting the Constitution in the final minutes of May 8, 1949, can hardly be overstated. It expressed a binding mandate for all Germans to realize that the collapse of the previous dictatorial regime was a moment of liberation, that indeed it was the beginning of a political and civilizing rebirth.
The preceding remarks make one thing clear: if constitutions are documents of a sovereignty that aims to make civilized normality possible, then sites of the debate over the structures that do make civilized normality possible are just as deliberate as the times of decision-making are. If we examine the relevant historical documents of other nations in this regard, it becomes evident that sites and times of constitutional processes nearly always exhibit significant relations to prior upheavals. The idea of offering a constitution to the commonwealth bears per se an affinity to political change in itself. In fact, as a rule, new constitutions do not follow the repudiation of earlier forms of political rule that have become intolerable – whether absolute monarchy, tyranny, dictatorship, or a colonial regime. This is not to say that existence’s will to order under a democratic or republican constitution necessarily leads to conflicts. Rather, in many cases the creation of a constitution involves the cessation of historical conflicts that precede the emergence of a commonwealth in democratic states or republics.
In this regard, the circumstances under which the German Constitution came about are comparable to the convulsions that led to the two paradigmatic constitutional projects toward the end of the eighteenth century, the American and the French, at least from a typological perspective. In the first case, turbulence preceded the American Revolution, in which the War of Independence (began in 1775) ended with the British defeat in Yorktown in October 1781 and was finally concluded with the Treaty of Paris in May 1783. The political-juridical result of the fierce conflict was the Constitution of the United States in 1787, which has remained in force until the present day, and was supplemented by an additional catalog of civil rights, the so-called Bill of Rights. The fate of French efforts to produce a constitution for the post-absolutist state assumed an entirely different form: far from moving the nation out of its revolutionary unrest and into normalized relations, the development of the French Constitution was continually swept along by the storms of revolution, civil war, imperial adventures, and restoration. The country went through twelve constitutions between 1791 and 1852, none of which were able to extricate themselves from their connection to the vicissitudes of France’s national history, both internally and externally. Some of the constitutions were only in force for a short time or were never really effectively implemented. Yet even the temporary dictates of imperial flights of fancy and monarchic restoration helped ensure that the quasi-sacred, timeless core of these new types of basic texts for the formation of a commonwealth, the guarantees of basic civil rights, would never be completely eclipsed. From this one can gather that the speech act that founds political modernity in the most profound sense of the term consists in proclaiming a catalog of civil rights, which can assume the form of a declaration of human rights. Such proclamations are no longer the crowning achievement of guaranteeing civil security, wrested from the established order, as was the case with the older British Bill of Rights: rather, the declaration of human rights is the performative act – in idealist terms, the “fact-act” [Tathandlung] – by which civil society, also known as the people [Volk], grants itself autonomy.
If we proceed by observing the German case in 1948–9, we should note that the remarkable moment of formulating the constitution points to a “thereafter” in the most eminent sense of the word. To be sure, the new Constitution could not put an end to the preceding chaos of an unjust regime, war, and terror all by itself, although it was able to shape conditions after the chaos. This might generally be the case for situations in which communities, after a period of upheaval due to oppressive rule and inner strife, learn to seek a local formula for an existence of self-determined freedom. Because constitutions are typically formulated in the shadow of war and catastrophe, they generally have a clear “antagonist” [Wogegen]. The more clearly pronounced the memories of intolerable relations that have been overcome are in a population, the easier it is to generate the fundamental consensus of citizens on the “spirit of the laws.” If the founding moment has receded into the past, the constitution’s guiding principles must be reconstructed and reanimated by interpreters – even and precisely when the latter no longer have direct access to the horrors of former wrongs, because normalization has since come to prevail. In fact, the fundamental gesture of producing a constitution – in Germany more than anywhere else – is associated with an act of reconsideration or, to put it in religious terms, with an inner and outer gesture of conversion, of metanoia. It is a characteristic feature of the art of a post hoc interpretation of a constitution to empathize with the meta-noetic spirit of formulating a beginning and of repeating the gesture of conversion to a new and good normality under the unpredictable conditions of a subsequent situation [to avoid repetition of “conditions”].
If sovereign is he who provides the conditions for the normal state of affairs, then the implementation of the decree on that remarkable 8th of May, 1949, was in the hands of a twofold sovereign: On the one hand, it was up to the American, British, and French military governors, who had given the necessary permission to their German partners for the development of a constitution for what was at that time the “Western zones,” in the spirit of Western liberal democracies. On the other hand, it was to be found among the members of the Parlamentarischer Rat, whose consultations over nearly nine months – based upon the preliminary formulations of the Herrenchiemsee convention in August 1948 – produced the version of the German Constitution that is still in force today, although it has been amended more than fifty times in the interim.
Nevertheless, the actual authors of the preliminary German “constitution” or, more precisely, its 53 proponents on May 8, 1949, rejected the assumption of sovereignty for their own council, wisely limiting their power. They granted full sovereignty to the “German people” [Deutschen Volk] – who here step onto the stage of international law with a capital “D,” thanks to a mistaken capitalization of the adjective deutschen. With this gesture, the Fathers and Mothers of the Constitution are integrated into the history of political modernity: since the proclamation of the American and French Constitutions, the characteristic feature of such a constitution has consisted in the transfer of sovereignty from an absolute monarch appointed by God to a nation appointed by nature, or by history, to rule itself. The Preamble of the “Constitution” attributes an authority to this sublime collective by virtue of which it is designated as the genuine author of the document that was adopted: this authority is referred to as “constituent power” in the Preamble. To be a people in the modern sense of the term accordingly means: to be sovereign. On the other hand, to be sovereign means to have the authority to adopt a constitution that is conducive to self-rule. Constituent power moves within this sublime circle: the people must already be sovereign in order to be able to adopt a constitution, but they only become sovereign after they have exercised their constituent power. The German population becomes the German people through the practical construction of this circle.
The organ of the sublime circle is the constitutional convention. In its representation of a new sovereign, the people, it institutes the latter in their sovereign role. In instituting the people, it legitimizes itself as the people’s authorized representative. While an ordinary parliament is no more than a transparent instrument of the “electorate” that is manifested across a spectrum of votes in favor of political parties and individual candidates, a constitutional convention is something that is inconceivable without an element of the politically mysterious. Like the Church Fathers, the authors of the constitution are indeed themselves delegates of organs that already have a limited democratic legitimacy (in this case, they have such legitimacy in the federal states) – yet the task of producing a constitution is nevertheless of a higher order than trivial delegation. They are “ordained,” as it were, by their delegation to the sublime organ: they become delegates of the potential sovereign, who after an appropriately lengthy phase of consultation and reflection will be named the current sovereign by these very same delegates. As soon as they take their place in the midst of this council, they are no longer merely partisan representatives. They are expected to change into agents of that ominous volonté générale, which would better be termed intelligence générale or compétence générale – that is, they are expected to change into personified media of the spirit of democratic laws.
The mystery of representation is never to be more intensely observed than in the emphatic moments of the political history of ideas, in which a few delegates have the task of formulating the institutional framework of relations under which the sovereign collective, for whom they speak, is supposed to reach its politically vital optimal condition. The fulfilment of such an office is inconceivable without an element of elevation. The delegates of a constitutional convention must convincingly embody the mandate to select the best practices and to draw the most important conclusions from the sum of their own people’s political wisdom to this point. In addition, it behooves them to learn from the experiences of their own history and to incorporate every precautionary measure into the constitution that will immunize the community’s vital new political endeavor against breakdown and abuse, insofar as this is possible.
As is well known, the Parlamentarischer Rat of 1948–9 was twothirds composed of civil servants, with half of its members lawyers – reason enough to ask why a circle of such persons were possibly thought qualified to function as the clear and selfless media of universal interest, to the extent humanly possible. The dominance of the juridical factor in this sublime council is retrospectively justified by the fact that the future democracy was supposed to be entirely arranged as a nomocracy: the Parlamentarischer Rat heeded the advice of Montesquieu, by seeing to the rule of law with a strong and independent judiciary. In contrast, the large presence of a civilservice element was indicative of the understanding that democracy is condemned to fail without loyal public officials and a credible implementation of legal procedures – although a potentially problematic preponderance of government structures over and against the intransigence of civil society is already heralded by such a disproportionate presence.
That sixty-five delegates are supposed to put the rational will of seventy million (or fifty-two million, if one does not add the population of East Germany) members of an entire nation [Staatsvolk] into words, and codify it with supreme authority, is a clear indication of the predicament of representation. Numerically speaking, every single member of the Parlamentarischer Rat bore the mandate to represent approximately one million human beings. This relationship is inconceivable without a certain mysticism of condensation. The constitutional convention is similar to a political distillery, in which the essence of the best moral and juridical institutions is supposed to be extracted by a population that has been rocked by dictatorship, war, and defeat – along with the best knowledge obtained since 1787 of the institutional structure of a democratic commonwealth.
Looking back over the work of the Parlamentarischer Rat, it is no exaggeration to observe that it perfectly justified this challenging mandate. It succeeded most impressively in crafting a document of the democratic sublime, which has passed the test of time summa summarum, with flying colors, through changing circumstances and fluctuations of the zeitgeist. This is especially true for the excellent statements in the Preamble and the first nineteen Articles, which can virtually be characterized as a solemn atrium leading to the pragmatic sections on the state’s structure. With deliberate pathos, the Fathers and Mothers of the Constitution began with an impressive catalog of civil rights. In this way, they expressed the quite costly recognition that respect for individual rights and the protection of such rights must form the state’s paramount goal. The sovereign constitutive people should never again be thought of as a total collective, least of all a genetically determined collective substance, as nationalist ideology would have it. Above all, the Parlamentarischer Rat justified its historical mandate by establishing a bulwark of sublime protective formulae around the individual citizen – in recognition of the evident fact, which was palpable at the time, that citizens must continually be protected from the encroachment of autocratic collective organs.
In Article I, the Constitution forcefully stipulates in a dogmatic manner that human dignity shall be inviolable – the word “dogmatic” should here be understood in its best sense. In making this statement, the authors claim the prerogative to not merely publish a fundamental theorem that is legally axiomatic, but to accept nothing less than an anthropological teaching position in which they distill the quintessence of old European humanism from its Greek, Roman, and Christian sources. Their declaration includes an individualistic confession. From the very first lines, the German Constitution confesses to perpetually leaving unresolved the conflict between the principle of the people’s sovereignty and the principle of the sovereign dignity of the individual. What we now refer to as “the people” is already of its own accord an inevitably polyphonous, occasionally dissonant concert of micro-sovereignties, each one of which is supposed to be endowed with the highest of all the attributes of immunity – inviolability.
The German example is a powerful reminder that the art of writing a constitution requires us to balance two tendencies of exalted pathos: the pathos of founding a commonwealth and the pathos of protecting the rights of individuals. This balancing act is drawn from a bipolar anthropology that characterizes human beings as empathetic and cooperative, but also egotistical and antisocial. The very first word of the Constitution’s first sentence, which reads “Human dignity,” remains incomprehensible if we do not recognize an air of compromise between enthusiasm and realism: the dignified human being can only develop its dignified status through the indissoluble assumption of dignity. The human being confirms the lofty assumption of such a status by developing into someone who merits it. Thus the concept of “human dignity” always includes futuristic elements. This concept evocatively possesses the dynamic of a predicate that makes good on its own claim to truth – otherwise it would merely be an empty formula for idle talk on Sunday afternoons. Although formulated in the present tense, the phrase ist unantastbar [Tr. – literally “is inviolable”] is simultaneously operative in the future tense, that is, as “shall be inviolable.” Although expressed in the indicative mood, it also implies a solemnly discreet optative mood. And just as the concept of “democracy” only makes sense when it does not merely describe a given organizing framework, but also provides an orientation for the commonwealth’s further development, so the term “human dignity” does not merely signify the axiom of an already established legal system but also includes guidance on how to assert the basic principle more broadly. We should thus always be mindful of a temporal tension in the concepts “democracy” and “human dignity.” Everything seems to suggest that the much-cited “eternity clause” in Article 79, paragraph 3 of the German Constitution – which protects the catalog of civil rights and the federative structure of the state from new amendments that would alter the constitution – should not merely be understood as a gesture that provides an additional immunizing bulwark for the constitutional inner sanctum. Rather, the eternity clause can be interpreted as a formal trace of the mandate to forever keep open the tension between what has already been and what has yet to be, a tension that makes democracy possible. This tension is the logical place for what is called political freedom.
We could thus say: sovereign is he who decides on the first sentence of the constitution. We are faced with a fundamental decision from the very first moment. With admirable resolve, the Constitution for the Federal Republic of Germany declares that the human being him- or herself is the exception whose conditions for possibility, within the enclosure of protecting laws, can never be struggled for too much nor prove too costly. This act proclaims that the will to make the improbable into the normal state of affairs is essential to real civilization.