Constitutional Self-Defense

A constitutional tradition with immediate relevance

            Can a constitution defend itself?  Germans have asked this question, and given an answer.  So, for that matter, have Americans.

            When German democracy collapsed in 1933, the main hostile actor was a political party: the National Socialists, or Nazis.  Although Hitler and his allies openly campaigned against what they called the "system" and made no secret of their plans to bring an end to the rule of law, they came to power thanks to an election.  Once in power, Hitler took advantage of a fire in parliament to declare a state of emergency -- which legitimated his dictatorship and remained in effect until 1945.

            After the bloodiest war of the twentieth century, after the extermination campaign of Jews now known as the Holocaust, after the mass starvation of Soviet prisoners of war, after the mass killing of civilians in the Belarusian countryside and in the Polish capital, after countless other crimes, but most importantly after defeat, (West) Germany was reconstituted as a democracy.

            One of the principles of West Germany's postwar constitution -- known as the Basic Law -- was constitutional self-defense. 

            According to section 1 of article 21, the "internal organization" of political parties "must conform to democratic principles."  According to section 2, parties that "seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional."  Section 3 excludes from state financing parties that "are oriented towards an undermining or abolition of the free democratic basic order or an endangerment of the existence of the Federal Republic of Germany."

            Judgement as to the constitutionality of political parties is assigned (in section 4) to Germany's highest court, the Federal Constitutional Court.  On January 23rd of this year, for example, the Federal Constitutional Court denied state financing to an extreme-right party known as Die Heimat, finding that it "shows disdain for the free democratic basic order."

            When the American republic was attacked in 1861, this was understood by its defenders as an insurrection.  After the Confederacy's military campaign to preserve and extend the institution of slavery, after the bloodiest war the United States has ever fought, the United States was reconstituted as a democracy.  To its original Constitution were added three amendments.

            One of the principles of America's postwar Constitution, as amended, was constitutional self-defense. 

            According to section 3 of the Fourteenth Amendment, no one shall "hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

            Donald Trump, who participated in an insurrection in January 2021 and has provided aid and comfort to other insurrectionists then and since, has accordingly been barred from participating in elections in Colorado and Maine.  Trump has appealed a ruling of the Colorado Supreme Court, and the Supreme Court will hear arguments in his case beginning February 8th. 

            In other posts I have discussed the legal, political, and historical issues involved in Trump's case, which he should lose.  Here I just want to note that the idea of constitutional self-defense is normal in major democracies, and for excellent historical reasons.  The crises of 1861 and 1933 are central to American and German political thought. 

            In the histories of both Germany and the United States, today the world's most important democracies, there came a moment when a minority, willing to use violence, sought to break the constitutional order.  In both cases this led to horrifying levels of killing, and only then a restoration (Germany) or elevation (the United States) of constitutionalism.  That renewed or improved constitutionalism included the principle of constitutional self-defense.

            So, yes, a constitution can defend itself.  The Fourteenth Amendment of the United States Constitution and Article 21 of the German Basic Law show how.  Constitutional self-defense is part of the American and the German constitutional tradition.

            A constitution can defend itself against almost any threat.  The one point where it is helpless, though, is when judges refuse to read and apply its plain language.  As German judges have just reminded us, the relevant verdict has to be issued at the relevant time.