Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School

Abstract

What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigré scholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.

Full text

Global Constitutionalism (2018), 7:1, 54–74 © Cambridge University Press, 2018
doi:10.1017/S2045381718000011
54
Resisting democratic backsliding: An essay on
Weimar, self-enforcing constitutions, and the
Frankfurt School
sujit choudhry
University of California, Berkeley and Center for Constitutional Transitions, Boalt Hall, Berkeley, CA
94720-7200
Email: suj@constitutionaltransitions.org
Abstract: What, if anything, can constitutions do to resist democratic backsliding?
The collapse of the Weimar Republic has led scholars of comparative politics
to conclude that constitutional forms and institutions can do little to resist the
breakdown of democracy and the rise of autocracy. This paper offers a
constitutionalist response. The outlines of that answer can be found in decades-
old policy documents produced by a set of German émigré scholars during and
in the immediate aftermath of the Second World War: Franz Neumann, Herbert
Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability
in the creation of a framework for bounded partisan pluralist contestation among
political parties that track the principal social and economic cleavages, and that is
rooted within, and does not seek to overthrow, the underlying political economy.
Second, the secret reports highlight the importance of constitutional design
in creating a constitutional infrastructure for bounded pluralistic political
contestation, especially with respect to the role of political parties. Third, the
secret reports suggest a counter-narrative of the German Basic Law as creating a
framework for political contestation that reinforces constitutional stability instead
of undermining it.
Keywords: constitutional design; democratic backsliding; political parties;
Weimar
I. Introduction
What, if anything, can constitutions do to resist democratic backsliding?
This has emerged as one of the central questions for the fate of constitutional
democracy in the first half of the twenty-first century. In a diverse and growing
set of countries, including Hungary, India, Poland, South Africa, Turkey and
the United States, this issue has surged onto the constitutional agenda. These
cases straddle geographic, cultural, and economic divides. Indeed, the term
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Resisting democratic backsliding 55
democratic deconsolidation has recently been coined to capture the idea
that the threat of democratic backsliding is no longer confined to transitional
democracies emerging from authoritarian rule, and encompasses both
consolidated and unconsolidated democracies.1 As we think about the
sources of, and potential responses to, democratic backsliding, the
conversation is now truly a global one.
This emerging discourse is comparative cross-jurisdictionally. The most
dramatic implication of this argumentative turn is the apparent death of
American exceptionalism – i.e., the idea that American political development
is fundamentally different from those of other constitutional democracies.
But it is also comparative historically. While there is a long tradition of
historically-oriented, comparative scholarship on both democratic transitions
and breakdown, pioneered by Juan Linz and Al Stepan,2 historical examples
have re-emerged as important elements not only of academic analysis,
but also of constitutional practice. Among these cases, among the most
important is the collapse of the Weimar Republic.
Weimar has come to represent the paradigmatic example of democratic
backsliding, which defines the breakdown of constitutional order in a
certain kind of way. As Karl Lowenstein argued more than 80 years ago
shortly after the rise of Hitler, Weimar fell because it had ‘tendered to a
ruthless enemy the most effective weapons for its own destruction’.3 For
Lowenstein, the rights and liberties, institutions, and procedures of liberal
democracy were abused from within by a political party through a strict
fidelity to constitutional legality, which enabled it to capture the state and
to put an end to democracy:4
Democracy sharpened the dagger by which it was stabbed in the back …
by the generous and lenient Weimar republic [sic.], Hitlerism was
allowed to use democracy for the avowed and explicit purpose of
destroying democracy. The anti-parliamentarian cohorts entered the
legislative bodies with the unreserved intention to wreck the legislative
machinery. The courts misunderstood the true meaning of democratic
privileges and sustained the ‘constitutional’ rights of the movement.
1 R Stefan Foa and Y Mounk, ‘The Danger of Deconsolidation: The Democratic Disconnect’
(2016) 27(3) Journal of Democracy 5.
2 J Linz and A Stepan (eds), The Breakdown of Democratic Regimes (Johns Hopkins
University Press, Baltimore, MD, 1978).
3 K Lowenstein, ‘Autocracy Versus Democracy in Contemporary Europe, I’ (1935)
29 American Political Science Review 571, 579. For a contemporary discussion of these
concerns, see S Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1405
and S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional
Courts (Cambridge University Press, New York, NY, 2015).
4 Ibid 580.
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56 sujit choudhry
By this attitude, they frustrated the belated and half-hearted measures
of weak and dogmatically entangled governments. The democratic
constitution became the main obstacle against its maintenance and the
best tool for its destruction.
Scholars of comparative politics have taken from this diagnosis of
the breakdown of Weimar a broader lesson about the limited role of
constitutions in resisting democratic backsliding. Writing shortly after
the election of President Trump in the New York Times, for example,
Steven Levitsky and Daniel Ziblatt argued in response to those who
took comfort from America’s long, unbroken tradition of constitutionalism,
including judicial review as a check against democratic backsliding,
that:5
[a] well-designed constitution is not enough to ensure a stable
democracy … Democratic institutions must be reinforced by strong
informal norms. … Norms serve as the soft guardrails of democracy,
preventing political competition from spiraling into a chaotic, no-holds-
barred conflict.
Although Levitsky and Ziblatt cited the Latin American experience as an
illustrative example, Weimar lurked in the background. On their view,
constitutional forms and institutions can do little, in the end, to resist the
breakdown of democracy and the rise of autocracy.
Is there a kind of constitutionalist response to democratic backsliding
that takes seriously, responds to, and integrates, the lessons of comparative
politics? In this article, I suggest that the outlines of that answer can be
found in decades-old policy documents produced by a set of German
émigré scholars during and in the immediate aftermath of the Second
World War: Franz Neumann, Herbert Marcuse and Otto Kirchheimer.
Neumann, Marcuse and Kirchheimer were prominent members of the
Frankfurt School, who went into political exile in the 1930’s in the United
States. They were important legal and political theorists; Neumann and
Kirchheimer were also lawyers who had practised in Weimar. But during
the Second World War, the three of them were recruited to join the OSS
(the precursor to the CIA) as policy advisors on the reconstruction of
Germany. They wrote a series of classified reports, in English, that sought
to explain the breakdown of Weimar and the nature of the Nazi regime
including its possible collapse, and offered highly detailed advice on a
broad range of legal issues in a post-War Germany. The secret reports
5 S Levitsky and D Ziblatt, ‘Is Donald Trump a Threat to Democracy?’ New York Times
(16 December 2016).
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Resisting democratic backsliding 57
were published as a collection for the first time in 2013, seven decades
after the first one had been written.6
The secret reports present a puzzle with great contemporary political
salience. These members of the Frankfurt School had a ringside seat on the
breakdown of the Weimar Republic, and the catastrophe that followed.
Yet they held out hope for the prospect of constitutional order at its
darkest moment, in precisely the country where it had experienced its most
abject failure, to ensure that Weimar never happened again. What was the
basis for this sober optimism, this realistic, clear-eyed faith in the potential
of constitutions to stem the slide into disaster? Are there contemporary
lessons we can learn?
I make three main claims in this article. First, the secret reports set
out a theory of constitutional stability which is rooted in the creation of a
framework for bounded partisan pluralist contestation among political
parties that track the principal social and economic cleavages, that is
rooted within, and does not seek to overthrow, the underlying political
economy.7 Following Barry Weingast, this is a version of a theory of
constitutional ‘self-enforcement’, because political opponents have more
to gain from cooperating and competing within the constitutional order
than in bringing it down.8 Second, the secret reports provide a response
to scholars of comparative politics by highlighting the importance of
constitutional design in creating a constitutional infrastructure for bounded
pluralistic political contestation, especially with respect to the role of
political parties. If constitutions enable parties to be aligned with the
principal economic and political cleavages, those constitutions are more
likely to be stable. Third, the secret reports should lead us to reassess the
dominant narrative surrounding how Germany’s Basic Law orients itself
to the legacy of the Weimar Republic. The dominant narrative of the Basic
Law imagines it as establishing a clear foundation of human dignity,
judicially enforced and protected by an eternity clause; the secret reports
suggest a counter-narrative of the Basic Law as creating a framework for
political contestation that reinforces constitutional stability instead of
undermining it.
6 F Neumann, H Marcuse and O Kirchheimer, Secret Reports on Nazi Germany: The
Frankfurt School Contribution to the War Effort, edited by R Laudani (Princeton University
Press, Princeton, NJ, 2013).
7 S Issacharoff and R Pildes, ‘Politics as Markets: Partisan Lockups of the Democratic
Process’ (1998) 50 Stanford Law Review 643.
8 S Mittal and B Weingast, ‘Self-Enforcing Constitutions: With an Application to Democratic
Stability in America’s First Century’ (2013) 29 Journal of Law, Economics and Organization
278. Also see D Levinson, ‘Parchment and Politics: The Positive Puzzle of Constitutional
Commitment’ (2011) 124 Harvard Law Review 657.
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58 sujit choudhry
II. The secret reports: Liberal legalism vs. social and political theory
The collection prints 31 secret reports; there are many more not included,
to which the theorists contributed and which they may have even written,
but for which insufficient evidence exists to attribute authorship at this
time. They span the time period 1943 to 1949. The collection organises
the reports into seven parts: ‘The Analysis of the Enemy’, ‘Patterns of
Collapse’, ‘Political Opposition’, ‘Denazification and Military Government’,
‘A New Germany in a New Europe’, ‘Toward Nuremberg’ and ‘A New
Enemy’. The secret reports range over a broad array of topics under each of
these headings, including economic policy (inflation, centralised European
controls of raw materials, industry and transport, cartels), political
dynamics in Nazi Germany (Speer’s appointment as dictator of the German
economy, the attempt on Hitler’s life, the social and political impact of the
air raids on the German people), the political roots of Nazism (anti-
Semitism, Prussian militarism), denazification and military government
(dissolution of the Nazi party, German criminal justice under military
administration) and war crimes trials (the Nazi Master Plan, the Leadership
principle and criminal responsibility). As the secret reports move forward
through time, it becomes likely, and then almost certain, that the Allies
would defeat the Nazis, and the reports accordingly turn to concrete
plans for a projected American military occupation. They are written
for policymakers, and are often highly technical and detailed, containing
extensive lists of laws and regulations to be repealed, and government
units to be purged by a military government.
The secret reports provide a window into how these members of the
Frankfurt School deployed their analytical and theoretical prowess in the
service of detailed policy prescription, in which law and legal institutions
figured centrally. But notwithstanding their origins and audience, the
secret reports are an exercise in applied legal, political and social theory.
They could be read as a German tract in the tradition of the Federalist
Papers, because their analyses incorporated basic political ideals alongside
attentiveness to political interests and concrete institutions. And like the
Federalist Papers, they should have enduring value even though they were
written in real-time in response to fast moving events with a view to
shaping political decisions at hand.
The secret reports devoted considerable attention to the breakdown of
constitutional democracy in the Weimar and its reconstruction after Nazi
rule. Since Kirchheimer and Neumann were lawyers, it is not surprising
that law and the legal system figured prominently, especially in the reports
they authored. But the archive speaks in in two distinct voices: liberal
legalism and political and social theory.
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Resisting democratic backsliding 59
The secret reports deployed the traditional tools of liberal legalism to
describe and assess Nazi policy and institutions, and to set out a framework
for denazification and the reconstitution of a liberal legal order. The tools
of liberal legal reform ranged from renovation to abolition and re-creation.
In ‘Nazi Plans for Dominating Germany and Europe: Domestic Crimes’,
written in August 1945 (Ch 29) Kirchheimer carefully laid out the role of
legal instruments in the rise of the Nazis, which he termed ‘political terror’.
It was through the law that Hitler was appointed Chancellor, and that the
Reichstag was dissolved; that the Communist Party (KPD) was abolished,
its property seized, and its members persecuted; that the concentration
camps were established to initially target political opponents of the regime;
that trade unions, political parties and other organizations that resisted the
Nazi rise were abolished; that penal legislation was adopted to effect Nazi
policy (e.g. on racial hygiene) and to suppress the regime’s enemies; that in
the form of prosecutorial discretion, the protection of the ordinary criminal
law was denied to the Nazi’s victims.
In ‘The Abrogation of Nazi Laws in the Early Period of the MG [Military
Government]’, for which there is no firm date, but which presumably was
written in March 1944, Kirchheimer devoted specific attention to the role of
the Germany judiciary (Ch 15). He charged the German courts with having
abetted the Nazis rise to power, by discriminating between ‘nationalist and
Leftist political opposition’ (232) in the application of the criminal law; in
so doing, ‘the judiciary constituted one of the chief benefactors of the groups
thriving upon aggressive nationalist policies’; it followed that ‘the Nazis …
could never have been able to build up terroristic organizations undisturbed
by official interference’ without judicial support (232). Once in power, the
Nazis used the judiciary as an instrument of legal terror when, by having
them enforce legislation and cooperating with the extra-legal infliction of
coercive interrogation and torture.
The centrality of the legal system to the rise and maintenance of Nazi
power raised important questions about how a military government
should tackle them going forward. A key recommendation was the blanket
suspension of the entire German judiciary, extending beyond special courts
and jurisdictions used to prosecute political opponents to the entire
court system, as a preliminary step to comprehensively vetting judges`
individually, on the basis of a detailed review of personnel files and public
hearings. The secret reports also laid out extensive plans for Nazi-era
legislation. Kirchheimer (in ‘The Abrogation of Nazi Laws in the Early
Period of the MG’) categorically rejected the view that since Nazi legislation
was invalid because it was rooted in an unconstitutional and illegitimate
seizure of authority, it should therefore be declared immediately and
retroactively invalid in its totality, because not every law was morally
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60 sujit choudhry
objectionable, and so doing would produce chaos by destroying countless
acts of private reliance. Instead, he proposed the careful repeal of
discriminatory legislation, legislation granting special privileges to the
Nazi party, and special criminal law and procedure regarding political
crimes and racial crimes.
In the same vein, Kirchheimer devoted a secret report (‘Nazi Plans for
Dominating Germany and Europe: Domestic Crimes’) to the prosecution of
Nazis for crimes committed in violation of domestic criminal law. The premise
of this secret report was that the ordinary criminal laws protecting life and
bodily integrity remained in force during the Nazi era, but had not been
applied to the benefit of the Nazi’s victims. So the presumptive recommendation
was simply to apply the laws in force at the time to the Nazi’s conduct. This
led Kirchheimer to work through a set of familiar liberal legal dilemmas,
arising out of what we would now term the transitional justice context. If
Nazi criminal law was to govern the conduct in question, should its defences
apply as well? Was the Nazi regime even constitutional? Could there be a
selective retroactive revision of legislation which abrogated the immunity of
the Nazi party from the ordinary laws, and which justified the commitment of
crimes (e.g. the crime of race defilement)?
At times, Kirchheimer had to unravel legal knots created by this
commitment to fighting institutionalised evil through liberal legalism. A
fascinating example can be found in ‘Leadership Principle and Criminal
Responsibility’, in which Kirchheimer and John Herz in July 1945 adapted
doctrine of respondeat superior to the Nazi context, whereby superiors
granted broad discretion to, and very few direct orders, to their subordinates
– thereby avoiding liability under traditional legal principles. But under Nazi
constitutional theory, leaders are responsible for the acts of subordinates
even if they have not ordered or acquiesced in them. Kirchheimer and Herz
reasoned by analogy to develop a corresponding theory of criminal liability
for leadership crimes that was a logical corollary to the way in which
authority was understood and wielded by Nazi leaders (Ch 27).
As these select examples from the secret reports illustrate, a traditional,
liberal legalist framework on the problem of democratic backsliding has a
particular analytical viewfinder that highlights certain issues, and casts
others in shadow. It foregrounds how backsliding can occur through the
perversion of legal forms and institutions, which in turn serve as a system
for reinforcing an authoritarian political order. It entails a clear path toward
the reconstruction of constitutional democracy, through the wholesale
replacement of authoritarian laws by norms rooted in liberal democracy,
coupled by a blanket judicial purge to ensure a new cadre of judges sworn
to enforce those norms. Constitutional democracy is the mirror image of
what it replaces.
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Resisting democratic backsliding 61
But to be complete, the traditional liberal legalist framework must also
have a theory of the causes of democratic backsliding, which in turn should
have prescriptive implications. The liberal legalist answer came in the form
of militant democracy – at its core, the ideas that (a) democratic backsliding
can occur through the abuse of the rules and institutions of constitutional
democracy by a political party determined to end democratic life, and
(b) the best way to mitigate this risk is to restrict rights and freedoms as
strictly necessary to defend a constitutional democracy against capture by
authoritarian political parties. The secret reports devote considerable
attention to this issue, illustrating the concrete impact of Lowenstein’s
academic arguments, which had appeared nearly a decade earlier. Kirchheimer
proposed the immediate repeal of Nazi laws that prohibited political
parties, freedom of association, and freedom of assembly in order to allow
for the restoration of political life, but in a manner that would prevent
their abuse by Nazi supporters to engage ‘openly or in veiled manner in
Nazi activities’ (The Abrogation of Nazi Laws in the Early Period of the
MG’, 238). Marcuse, writing a few months later in July 1944, in ‘Policy
toward the Revival of Old Parties and Establishment of New Parties in
Germany’ (Ch 18), framed the problem of a Nazi return after the revival
of constitutional democracy as a problem of ‘camouflage’, which he viewed
as ‘the greatest threat to the security of the occupying forces and to the
restoration of a peaceful [democratic] order’ (297). The problem was not
just the revival of nationalist right wing parties using different names and
slogans, but also camouflaged nationalist groupings, such as business and
professional organizations. His proposals went further than Kirchheimer’s,
requiring the close supervision of right wing parties and the banning of
parties and other institutions merely dominated by former Nazis, even if
they did not publicly advocate Nazi aims.
Militant democracy is subject to the well-known objection from within
the liberal legal framework that it is self-contradictory, to which Neumann
responded in ‘The Revival of Political and Constitutional Life under
Military Government’ (September, 1944) that ‘[d]isefranchisement of certain
groups in society is altogether compatible with the idea of civil rights’ since
their ‘ultimate aim … has never been merely to protect all kinds of political
activities, but to provide the basis for the formation of a political will’
(432). But a more serious concern is the one raised by Levitsky and Ziblatt,
in the spirit of Madison’s ‘parchment barriers’ objection to constitutional
enforcement in Federalist No. 48. At its core, it holds that the same
political forces that challenge constitutional democracy would likewise
refuse to accept the constraints of its rules and institutions, and would
actively seek to subvert them, and with enough strength, time and
determination, would ultimately prevail. The vulnerable joint in the design
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62 sujit choudhry
of most constitutional democracies is the power to appoint judges and
the bureaucracy who would oversee and enforce the norms of militant
democracy; appointment powers cannot anticipate and prevent every kind
of abuse.
Lowenstein, the originator and public champion of militant democracy,
never squarely addressed this question. But we can infer what his answer
might have been from his views on the prospects for the success of the
broader project of legal reform in Germany under American military
occupation. He served as a legal advisor to the American Military
Government after the war, which gave him a first-hand, insider’s perspective.
In a little-known article published in 1948, based on his own experiences
in Germany, he appeared to concede that a liberal legal approach to the
democratic reconstruction of Germany, at least on its own, would not
suffice.9 Lowenstein observed that ‘few of the legal staff realized in advance
the degree of moral erosion to which Germany had been subjected by the
Nazi regime’ and had not realised their task extended beyond the design
of law and legal institutions to ‘the even more exacting assignment of
rediscovering under the Nazi rubble the Gestalt of the German social and
legal order’.10 Rather than confront this fundamental problem, American
legal advisors instead retreated into liberal legalism, specifically taking
‘refuge in and shelter behind the institutions and techniques of home’, on
the basis of a naïve belief ‘that the laws of social causation are identical in
different environments’.11 So perhaps hard experience proved that the
ambition of liberal legalism was impossible; ‘in retrospect, it may seem
doubtful whether any program of boldly recreating German life in the
image of the conqueror could have succeeded in the face of the ingrained
social habits of the German people’.12
By extension, Lowenstein might have likewise concluded that the project
militant democracy was doomed from the start, and could be overwhelmed
by the ‘ingrained habits of the German people’. Indeed, what Lowenstein
seems to be implying is that what brought down Weimar was not merely
a coup by a small, determined group of fanatics through constitutional
means, but a broader set of social forces that at the very least failed to
resist the Nazi takeover and undermined constitutional stability. Although
the secret reports did not expressly acknowledge this problem directly, the
theorists could not have been unaware of it, given the failure of constitutional
9 K Lowenstein, ‘Law and the Legislative Process in Occupied Germany: II’ (1948) 6 Yale
Law Journal 994.
10 Ibid 996.
11 Ibid 997.
12 Ibid.
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Resisting democratic backsliding 63
democracy in Weimar and the manifest need for denazification, which
conceded the limitations of a liberal legal focus on texts and institutions.
Neumann came closest when he said that a policy of denazification ‘would
still leave the forces of reaction and aggression entrenched in Germany’s
social and political structure’ (‘The Revival of Political and Constitutional
Life under Military Government’, 427). This is just as much a worry about
the prospect for constitutions to resist democratic backsliding as it is to the
whole project of liberal legalist constitutional reconstruction.
Perhaps in response to this challenge, the reports shift gears and speak
in a second, distinctive voice – that of social and political theory. One can
trace through the secret reports and their specific policy recommendations
a theory of constitutional stability that sheds light on Weimar and its
breakdown, the power structure of the Nazi regime, and the conditions for
building a politically more durable constitutional democracy after the Nazi
defeat. Marcuse produced the bulk of this analysis, although Neumann
contributed as well. This theory of constitutional stability is built around
the notion of social stratification. The secret reports organise German
society under democratic rule into a distinct set of social groups, each with
common economic interests, political goals to pursue those interests, and a
shared identity that enables them to translate those interests and goals into
collective political action. On the right, these groups included the agrarian
aristocracy of the Junkers, the traditional source of Prussian economic and
political power; heavy industry, which had eclipsed the Junkers as the heart
of the German economy; and the military, where the officer core dated
from the Imperial era and was dominated by the nobility. On the left, there
was labour, working in the industrial economy. In the centre of the political
spectrum, the old middle classes and peasants were ‘no longer a decisive
political factor’, in Marcuse’s view (‘Policy toward the Revival of Old Parties
and Establishment of New Parties in Germany’, 287). Rather, on his
account, the centre consisted of ‘a Catholic integration of members of all
social groups, holding the balance between Right and Left’ (299).
These social groups, in turn give rise to distinctive political parties. As
Neumann put it, in Germany (and indeed, across Europe), political parties
‘are not arbitrary creations but sprang from a definite social stratification’
(‘The Revival of Political and Constitutional Life under Military Government’,
422); that is, there is an underlying, social structure, ‘of which the Germany
party system was a reflection’ (422). For the social groups of the right, the
parties which they spawned, and which advocated for the interests in
politics, were the German National People’s Party and the German People’s
Party; for the left, it was the Social Democratic Party (SPD) and the KPD;
for the centre, the Centre Party and the Bavarian People’s Party. The core
of politics consists of how social groups, through their respective political
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64 sujit choudhry
parties, frame and negotiate political claims, and contest and work within
relationships of economic and political power that accept certain outer
boundaries or fixed presuppositions; these relationships constitute a social
structure. Politics occurs across multiple arenas – centrally, the Parliament,
but also, crucially, in the economy. And the mechanisms or means of
politics vary by context. In some cases, it is the constitution itself; in other
cases, it is through contracts or collective agreement; in yet others, is
through formal alliances or pacts. A constitutional order reflects, and is
nested in, a broader political economy that organises relationships among
these groups.
The reports develop and apply this social and political theory to offer a
positive account of the founding of the Weimar Republic and its collapse,
the political economy of the Nazi regime, and the likely nature of post-
Nazi political life. The common thread is that political change consists of,
and can be explained by, shifting power relations among social groups. In
the ‘Social Democratic Party of Germany’ (Ch 14), published in September
1945, Marcuse explained that at the founding of Weimar, the SPD ‘did not
obtain a popular and parliamentary majority’ (205) and therefore had a
choice – to fight for the goal of socialism with ‘the radical left … in a
revolutionary class struggle for socialism against the ‘‘bourgeoisie parties’’,
or it could cooperate with the latter within the framework of the capitalistic-
democratic state’ (205). It chose to advance social and economic reform in
the service of workers within a democratic, capitalist framework. These
commitments were formalised in 1918 through pacts with the Army to
jointly combat the revolutionary left, and with entrepreneurs to negotiate
wages and the conditions of work while respecting property rights. These
pacts provided the foundation for democratic cooperation with bourgeoisie
parties in coalition governments, and to maintain ‘the labor movement
within the framework of legalism and parliamentarism’ (205). This entailed
that ‘the SPD had to uphold the Weimar Republic not only against the
monarchists and other enemies on the right, but also against a considerable
part of the labor movement itself’ because the ‘SPD regarded itself as part
of the existing state rather than as the opposition to the state’ (206). This
commitment to the constitutional regime led the SPD to reconceive and
transform even one of its basic forms of political action, the political strike,
because it ‘saw in the political strike a threat to their position and their
vested interests in the prevailing state’ (206).
Although the Nazi regime asserted absolute power, it followed that that
power, as had the power of the Weimar Republic that preceded it, also
derived from a coalition of the same set of social groups, which constitute
the basic units of political life. To the theorists, this was not a democratic
coalition, but an autocratic coalition, of the kind that has become very familiar
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Resisting democratic backsliding 65
to students of comparative politics. In ‘German Social Stratification’ (Ch 6),
dated November 1943, Marcuse categorised social groups as ‘rulings
groups’ and ‘ruled groups’. The ruling groups were the Nazi party and big
business, the Army and the bureaucracy, and the Junkers. For Marcuse,
‘the privileged position of the ruling groups of Nazi Germany still rests on
the old foundations’ (79) and ‘the fundamental change in the forms of
political control which marked the transition from the Weimar Republic
to the Nazi state was not accompanied by an equally fundamental change
in the type of the ruling groups’ (81). But there had been two major shifts
in social stratification since the era of the Weimar Republic. The first was
that ‘political power is increasingly amalgamated with and even dependent
on economic power’ (79), as was reflected by the close alliance of business
and the Nazi Party. The second was ‘the disappearance of labor from the
policy-making level’; under both Weimar and Nazi rule, labor had been
a ‘ruled group’, but whereas ‘under the Weimar Republic, the political
decisions were the result of a compromise between the ruling and the
ruled … under the Nazi regime, they result from a compromise among
the ruling groups’ (81). The Nazis had adopted a divide and conquer
approach for labour, coopting its leadership and destroying it as an
economic and political base for the opposition.
Marcuse predicted in 1943 that after the fall of the Nazis, the ‘former
political tendencies which have split German workers will probably be
resurrected in a new form as soon as civil liberties are restored’ (85–6).
Writing in the dying days of the Nazi regime in 1944, Marcuse again
predicted ‘there will emerge a general pattern of political organization
corresponding to the prevailing structure of German society’ (‘Policy
toward the Revival of Old Parties and Establishment of New Parties
in Germany’, 288). The reason was that although ‘the Nazi regime has
abolished all parties with the exception of the Nazi Party … it did not
essentially change the social stratification of which the Germany party
system was a reflection’ (288). What the Nazi regime had done was only
to achieve ‘a temporary integration’ through economic cooptation – in the
form of full employment – and the coercive force of ‘a totalitarian terroristic
apparatus’ (288). However, once these two elements disappeared, ‘the
revived political life of Germany will, in its main lines, follow the old-
established pattern: the party systems will revolve around the two poles on
the Right and the Left’ (289). While the ‘names, slogans and programs’
might be new, ‘this will be a mere façade under which the real political
issues will be fought out’, i.e., economic and social policy. And indeed, in
September 1945 (‘The Social Democratic Party of Germany, Ch 14), in the
early days of military occupation, Marcuse’s prediction was borne out; he
observed that ‘the old social and political conflicts characteristic of modern
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66 sujit choudhry
Germany are reemerging’ and as ‘denazification has stripped the Hitlerian
layers from the structure of German society, its pre-Nazi shape has begun
to appear once more’ in the form of political parties ‘[c]losely expressive
of’ the Weimar period ‘which, representing specific social groups, worked
for the most part at cross purposes’, which in turn made it likely that ‘the
traditional conflicts are likely to reemerge’ (223).
What is the relationship between social stratification, political parties,
and constitutional stability? This is a key question and a puzzling omission
in the secret reports. To supply the answer, we must look to back to 1933,
to Kirchheimer’s review of Carl Schmitt’s Legality and Legitimacy.13 In his
essay, Kirchheimer distinguished between two accounts of democracy.
We can term the first the intrinsic account, which derives from the social
contract tradition. Persons are imagined as free and equal citizens who
provide their hypothetical consent to the coercive power of the state by
agreeing to live under a constitution that gives them the power to deliberate
and vote upon laws that restrict their freedom in a scheme of individual
and political liberties and freedoms. Kirchheimer suggests that the intrinsic
account presupposes ‘relatively uniform social classes’, and accordingly
that a different explanation for constitutional democracy is needed ‘in
a heterogeneous society’ with ‘distinct social classes’, as was the case in
Germany.14 Inspired by Charles Beard’s recent economic interpretation
of the American federalist constitution, Kirchheimer abstracted from it
the instrumental account of constitutional democracy. In that account,
‘democracy’s basic virtue lies in the fact that it provides a better chance for
each of the respective parties to exercise power than a non-democratic
system can provide’.15 And the explanation for the fall of Weimar – which
was unfolding as Kirchheimer wrote these words – was that this rational
calculus of self-interest no longer held. As he wrote, the instrumental account
of constitutional democracy ‘contributes to the instability of democracy to
the extent that political shifts may suggest to key parties or power groups
that democracy no longer functions as an adequate instrument for reaching
their particular goals. This appears to be the case in Germany.’16
Which group is Kirchheimer referring to? In this essay, he does not say.
But what he does seem to be arguing is that the fall of Weimar and the rise
of the Nazi regime was not simply the result of a small group of extremists,
13 O Kirchheimer, ‘Remarks on Carl Schmitt’s Legality and Legitimacy’ (1933) 68 Archiv
für Sozialwissenschaft und Sozialpolitik 457 in W Scheuerman (ed), The Rule of Law Under
Siege: Selected Essays of Franz L. Neumann & Otto Kirchheimer (University of California
Press, Berkeley, CA, 1996) 64.
14 Ibid 70.
15 Ibid.
16 Ibid.
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Resisting democratic backsliding 67
through some sort of legal-democratic coup, who seized power over the
objections of the social groups that came together in the pact that was the
Weimar constitution. Rather, he appears to suggest that one or more of
the constituent social groups of modern Germany chose to exit from this
arrangement, bringing the constitutional order tumbling down. The reports
are silent on this crucial detail, although the implication is that big business,
the bureaucracy and the army saw it in their interest to achieve their goals
outside of constitutional democracy. In the democratic reconstruction of
Germany, the theorists proposed specific elements of constitutional design
as part of an instrumental case for constitutional democracy that were
meant to mitigate this risk from materialising in the future.
Some of these are familiar. An important question was the choice of
electoral system. Weimar had been plagued by unstable coalition cabinets
that were a product of a fragmented legislature, in turn the result of a
system of proportional representation with a minimal threshold that
incentivised the proliferation of political parties, and which set the stage
for the Nazi seizure of power. One idea in response to this experience was
to shift to a system of constituencies and plurality voting, that would be
more likely to produce two large, umbrella parties that would alternate with
major governments, introducing stability into the constitutional system.
Neumann acknowledged this concern, in ‘Revival of German Political and
Constitutional Life under Military Government’, published in November
1944, and his response merits careful attention. He noted it would be
possible to redress this deficiency in proportional representation by raising
the threshold, as Germany eventually did. But this merely eliminated an
objection to proportional representation; it was not in itself a positive
reason to opt for proportionality representation over plurality voting.
Neumann’s positive case was as follows (434):
If it is the aim of MG to achieve internal stability in Germany, in order
to prevent the ascendancy of more demagogues and to minimize the
danger that secret Nazis and other agents will infiltrate all political
groups, the organized political parties should have every opportunity
to dominate the field. The parties can control the electorate and their
candidate. Proportional representation allows the organized parties to
achieve a predominant position in politics.
Within political parties, there is a balance of power between party elites –
career politicians, party officials, and expert advisors – and the party rank-
and-file. Neumann supposes that the party leadership is a relative source of
political moderation, and is more likely to see ongoing advantage to pursuing
policy goals within the constitutional order than the rank and file, which is
more vulnerable to radicalisation. This was a particular concern in the dire
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68 sujit choudhry
circumstances of post-War Germany, Neumann reasoned, because a
significant proportion of voters were focused on day-to-day survival, which
‘leaves the political field to determined minorities which may or may not
reflect the unconscious demands of the masses’ and capture political parties
(423). Proportional representation would strengthen party leaders relative
to voters. Indeed, he went further, and said ‘they would control the
electorate’, making them the principal actors of political choice. Strong and
relatively autonomous political parties would yield constitutional stability.
This was a radical stance at the time, especially because of the widespread
disrepute in which political parties were regarded in the Weimar Republic.
Carl Schmitt’s critique of the manner in which the rise of political parties
had subverted the institutions of parliamentary democracy, reflected widely
views.17 For Schmitt, Parliament was a forum for ‘discussion’, which he
understood to be ‘an exchange of opinion that is governed by the purpose
of persuading one’s opponent through argument of the truth or justice ...
or allowing oneself to be persuaded’, coupled with a ‘disinterrestedness’
consisting of ‘freedom from selfish interests’.18 Political parties, built around
sectional interests, had converted parliamentary decision-making into ‘an
object of spoils and compromise for the parties and their followers’.19 The
rise of political parties had shifted effective decision-making authority away
from parliament to ‘[s]mall committees of parties or of party coalitions’
who ‘make their decisions behind closed doors’, replicating ‘the secret
politics of princes’ to which parliamentarism was a response.20 Schmitt’s
views were held across the political spectrum; arguably German democrats
were even more critical of political parties in the face of the inability of
parties to stem the Nazi rise to power.
During the Weimar period, Hans Kelsen was a lone voice defending the
essential role of political parties to modern parliamentary democracy, in
On the Essence and Value of Democracy.21 For Kelsen, political parties
serve a number of important functions: they ‘unite the like-minded to ensure
their influence in shaping public affairs’ because ‘the isolated individual
has no real political existence whatsoever, because he can gain no actual
influence on forming the will of the state’22 – i.e. interest aggregation; they
17 C Schmitt, The Crisis of Parliamentary Democracy (MIT Press, Cambridge, MA, 1985).
18 Ibid 5.
19 Ibid.
20 Ibid 49–50.
21 H Kelsen, ‘On the Essence and Value of Democracy’ in AJ Jacobson and B Schlink (eds),
Weimar: A Jurisprudence of Crisis (University of California Press, Berkeley, CA, 2001) 84.
For a helpful discussion of Kelsen’s views, see Y Mersel, ‘Hans Kelsen and Political Parties’
(2006) 39 Israel Law Review 158, 160–5.
22 Ibid 92 (original emphasis).
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Resisting democratic backsliding 69
create ‘the organizational conditions’ for reaching a ‘common will’ which
is ‘a compromise among opposing interests’ – i.e., facilitating political
negotiation; they check the ‘the ideal of a collective interest above and
beyond group interests and thus “supra-partisan”’ which is no more than
a disguised attempt to serve ‘the interests of a dominant group’ – i.e., checking
tyranny.23 He concluded it was imperative ‘to anchor political parties in the
constitution and give legal form de facto to what they have long since
become: organs forming the will of the state’ – i.e., ‘[a] democracy is
necessarily and unavoidably a party state’.24 By suggesting that parties
should have some degree of institutional autonomy from voters and
individual politicians, the secret reports went even further than Kelsen;
while Kelsen appeared to conceptualise parties as agents of individuals
and the social groups to which they belonged, the theorists suggested that
parties were independent entities in and of themselves – a truly radical
position indeed. This raised in acute form the question of internal party
democracy, which Kelsen was alert to.25
A second important idea concerns the non-state, institutional support
for parties. An important issue high on the agenda for the Allied Military
Government was the fate of the German cartels. Germany had a business
culture that encouraged industrial combinations (which had vertical and
horizontal dimensions) long before the Nazi regime, which was facilitated by
a lack of antitrust regulation. These cartels were important interlocutors
of the SPD in the early post-Imperial period, and continued to consolidate
and expand during the Weimar era. Under Nazi rule, the cartels became
instruments of state policy to facilitate war production; the regime
consolidated them, established compulsory membership, and delegated
authority to cartels to regulate the economy. Indeed, many leaders of
cartels became Nazi party members, fusing political with economic power.
The reports advocate a Nazi purge that would be wide and deep – and on
this logic, it should have extended to the cartels.
But Neumann categorically rejected this approach in ‘German Cartels
and Cartel-Like Organizations’ (Ch 17, July 1944). His reasoning was that
the ‘political power of industrialists resides essentially in their wealth and
control of large corporations’, such that ‘any program to eliminate the
fundamental economic foundations of German aggression would involve
profound changes in the entire structure of individual and corporate
property in Germany’ (281). The constitutional argument is that Neumann
23 Ibid 92, 93.
24 Ibid 92 (original emphases).
25 Ibid 94 (‘Anchoring political parties in the constitution also makes it possible to
democratize the formation of the will of the community within this sphere.’) (original emphasis).
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70 sujit choudhry
foresaw large industry as a constituent social group of a post-war constitutional
order, and that its wealth was a source of economic and political power –
in a way that corresponded to how industrial labour was an economic and
political asset for a revived SPD. Protecting and safeguarding big industry’s
property rights from the outset, as a baseline for a new German regime,
the military authorities would increase the likelihood that a new right
wing party would participate in a new constitutional order to protect
those interests. Political contestation would be bounded by the underlying
political economy, including capitalist democracy, whose core elements
would be protected in the constitution.
What is conspicuously absent from the theorists’ vision for post-War
Germany is any notion of the power of judicial review. Yet the importance
of courts to the success of democratic reconstruction was a central
preoccupation of the secret reports, and indeed, were a key reason why the
theorists recommend a comprehensive process for vetting the entire German
judiciary. So what explains the omission of judicial review, alongside a
commitment to constitutionalism and a frank recognition of the centrality
of courts to a constitutional democracy? Part of the answer may lie in the
fact that the secret reports were written by social democrats, living in the
United States after the Court-packing crisis and the demise of the Lochner
era. For constitutional scholars committed to the regulatory, redistributive
state, the conflict between the political branches and the Court over the
constitutionality of the New Deal shattered their faith in judicial review.
Leftists across the world shared the scepticism of the left in the United
States toward judicial review – including, in all likelihood, the theorists,
given their support for the SPD.
So the challenge was to conceptualise a kind of constitutionalism and
judicial review that would avoid the risks of Lochner. One answer would be
a constitutionalism enforced without judicial review – that is, a system of
constitutional self-enforcement. But another would be a much more limited
role for judicial review, on the Kelsenian model – a priori, abstract, lodged in
a specialist constitutional court, and capable of being triggered by different
constitutional institutions (e.g. the Länder) that might be under the control
of a political party in opposition nationally, or by opposition members
of the legislature, in order to safeguard their constitutional protections.
Judicial review in the American model, which gives ordinary citizens direct
access to the courts to protect their rights, would be excluded.
III. Conclusion
In Political Liberalism, John Rawls distinguishes between two grounds of
stability for a basic structure of political and economic institutions: a modus
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Resisting democratic backsliding 71
vivendi and an overlapping consensus.26 A modus vivendi arises from a
balance of interests among competing social groups; it is contingent and,
for that reason, fragile. A shift in the assets and interests of contending
forces may destabilise a modus vivendi and therefore bring down the basic
structure. An overlapping consensus, by contrast, produces political stability
through a shared consensus around a public set of justifications for the
basic structure – that is, a public constitutional culture – that becomes
internally anchored among members of heterogeneous social groups. Political
stability is anchored in the right reasons, which Rawls argues is a more
resilient foundation for a basic structure than a contingent and potentially
shifting calculus of self-interest.
The theory of constitutional stability offered by Kirchheimer, Marcuse
and Neumann offers an account of how a modus vivendi can serve as the
foundation for an overlapping consensus, and the role of constitutions in
that process. The key is constitutional design. Constitutional design creates
a framework for bounded partisan pluralist contestation that is nested
within the underlying political economy, within which the major social
groups engage in political conflict and compete for power according to the
rules and under the institutions of a constitutional order, because it is in
their mutual advantage to do so. Kirchheimer explained how the shift
from modus vivendi to overlapping consensus might occur on the eve of
his exile from Germany and the collapse of Weimar:27
Every social system possesses a need for a certain legitimization and
strives … to transform itself from a set of factual relations of power into
a cosmos of acquired rights. … the legitimation of the given system of
social power is achieved through the forms of the existing legal order.
For Kirchheimer, through iterative political interaction, over time, of
living under and managing and settling political disagreement through a
constitutional regime, a public constitutional culture can emerge from this
shared practice, that both explains and justifies the constitutional framework
within which it occurs. This is how the ‘existing legal order’ – of which the
central component must be its constitution – begins as a system of ‘factual
relations of power’ and transforms into a ‘cosmos of acquired rights’.28
Weingast has argued more recently, in parallel fashion, that rational
calculation can give rise to common values, or even ‘veneration’ and
26 J Rawls, Political Liberalism (Columbia University Press, New York, NY, 1993).
27 O Kirchheimer, ‘Legality and Legitimacy’ (1932) 9 Die Gesellschaft 8–20, in W Scheuerman
(ed), The Rule of Law Under Siege: Selected Essays of Franz L. Neumann & Otto Kirchheimer
(University of California Press, Berkeley, CA, 1996) 44, 44.
28 For a similar argument, see F Almeida, ‘The Emergence of Constitutionalism as an
Evolutionary Adaptation’ (2014) 13 Cardozo Public Law & Policy Journal 1.
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72 sujit choudhry
is therefore also a characteristic of a regime of constitutional self-
enforcement.29 On Weingast’s view, however, ‘democratic stability rarely
arises from veneration, however, because veneration is not antecedent
to democracy’s consolidation but is a product of it’; self-enforcement,
on his account, ‘roots democratic stability in rational calculation’.30
I think Kirchheimer would disagree with Weingast – that is, he would
view the ‘cosmos of acquired rights’ as an additional source of ballast
in the vessel of constitutional democracy. Nonetheless, he would likely
concede – as would I – that veneration can only do so much to offset
rational calculation. In other words, while an overlapping consensus
enhances constitutional stability, a modus vivendi is a sine qua non.
Weingast introduces the concept of the constitution as a ‘focal point’
that captures it how it can coordinate elite and mass expectations and
behaviour in a system of self-enforcement – even without judicial review.
In their own theory of self-enforcement, I think that Kirchheimer,
Marcuse and Neumann would imagine constitutions as focal points in
two senses, each corresponding to a different source of constitutional
stability. A constitution can be an instrumental focal point by providing
a public framework for political decision-making that can shape
expectations, behaviour, and assessments of behaviour. But a constitution
can also be an expressive focal point by providing the raw material for
the creation of a public culture – perhaps even to create an after-the-fact
narrative of a ‘constitutional moment’ that elides over the interest-driven
nature of constitutional bargaining. This is the beginnings of an answer to
comparative politics about the role of constitutions in resisting democratic
backsliding.
The secret reports suggest that we should rethink how we talk about
the Basic Law in the comparative constitutional imagination. The Basic
Law is the world’s archetypical, and arguably the most successful post-
authoritarian constitution. In an era of global threats to constitutional
democracy, it has never been more important to learn from the Basic Law
and the Weimar Republic whose fall it was a response to. So what lessons
can we draw?
One set of lessons – the dominant narrative – sounds in liberal legalism.
The Basic Law is the constitution of absolute values, unamendable, and
eternal. Its foundation is Article 1, which entrenches the right to dignity as
absolute. These rights are subject to strong-form judicial review by a newly
29 B Weingast, ‘The Political Foundations of Democracy and the Rule of Law’ (1997)
91 American Political Science Review 245, 262.
30 Ibid.
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Resisting democratic backsliding 73
created, independent, specialist Constitutional Court. The Basic Law
entrenches the basic structure the German constitutional order – as a
rights-protecting, democratic, federal republic committed to the rule of
law – as beyond the scope of constitutional amendment (Article 79(3)). It
views politics negatively, as a potential threat to these fundamental values,
and creates mechanisms in the name of militant democracy to hem in
politics. Article 18 empowers the Constitutional Court to oversee the
forfeiture by individuals of their political rights if they abuse them ‘to
combat the free democratic basic order’. Article 21 authorises the Court to
declare political parties unconstitutional if ‘by reason of their aims or the
behavior of their adherents’ they ‘seek to undermine or abolish the free
democratic basic order’. This vision of the Basic Law is a decisive
repudiation of the social conflict and chaos of Weimar, and the catastrophic,
institutionalised abuses of the most basic human rights at a massive scale
of the Nazi era. Constitutional right prevails over political power.
But the secret reports suggest a counter-narrative of the Basic Law of
urgent relevance to the current age. A constitution rests on a political
foundation of power-relations, and provides the infrastructure for a
politics of bounded pluralistic partisan contestation. Political parties that
track the principal social and economic cleavages are at the centre of this
constitutional order and central to ensuring that Weimar does not happen
again. Article 20’s reference to Germany as a ‘democratic and social’ state
captures this idea. The Basic Law legitimises political parties, and defines
a central task as the design of rules and institutions governing political
parties and their role in the political process. The goal of this system is to
become self-enforcing, with judicial review limited to instances where
opposition parties and constitutional institutions under opposition control
can invoke the court to protect their power and prerogatives. Constitutional
stability is strengthened and sustained by political contestation that it
enables, not weakened by it. But constitutions are contingent, not eternal.
Militant democracy – as entrenched in Articles 18 and 21 – defines the
boundaries of political contestation, by excluding individuals and parties
who are presumptive defectors from the framework of political contestation,
because their goals and/or behaviour poses a threat to constitutional
democracy, or their lack of an internal democratic structure predisposes
them to imagine public power organised in a similarly undemocratic fashion.
The legislative process includes special protections for the opposition – for
example, by granting one-quarter of the members of the Bundestag the
power to establish a committee of inquiry (Article 44; also see Article 45a)
or the power to challenge the constitutionality of any law before the
Constitutional Court (Article 93(2)); and by providing that the Joint
Committee which considers government plans for a state of defence to
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74 sujit choudhry
have proportionate representation from political parties (Article 53a(1)).
The entrenchment of human rights and democracy through an eternity
clause, but one which is directed against and restricted to the return of
fascism, is part of this counter-narrative. This counter-narrative rejects the
scepticism of political parties in the Weimar Republic. Rather than seeing
political parties as undermining parliament as a forum for principled
decision-making above politics, it sees them as constituent elements of the
constitutional order. It also rejects the populism of the Nazi era, which
does not admit the very idea of a legitimate opposition and takes a
decidedly anti-pluralist stance toward political life; opposition parties are
no longer Schmittean enemies. This reading of the Basic Law should
prompt historical research into the links between members of the Frankfurt
school and the constitutional and political theorists of the left in 1950s,
such as Wolfgang Abendroth.
These may seem to be paradoxical lessons to draw from the breakdown
of Weimar, which fell victim to feckless political parties engaged in partisan
struggle, descending into paralysis and breakdown, and from the Nazi era,
which was characterised by the abuse of absolute power in the service
of unspeakable evil. But instead of running away from political power,
constitutions must firmly acknowledge that they rest on a political
foundation of instrumental need and must place political parties at their
very core. Bounded pluralist partisan contestation is not the negation of
constitutional essentials and a regime of fundamental rights. Rather, it lies
at their very foundation.
Acknowledgements
Earlier drafts of this article were presented at the GlobCon Colloquium,
the Berlin Colloquium on Global and Comparative Public Law, and
the annual meeting of the International Society of Public Law. I thank
Jeff Dunoff, David Dyzenhaus, Tom Ginsburg, Dieter Grimm, Samuel
Issacharoff, Mattias Kumm, David Law, Conrado Hübner Mendes, Zoran
Oklopcic, Ulrich Preuss, Mark Tushnet, and reviewers for Global
Constitutionalism for helpful comments. All remaining errors are mine.
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