Problems, always problems! Germany is like a patient who has recovered from a terrible disease, and ever after monitors himself for a recurrence of the symptoms. And indeed, the symptoms are there: neo-Nazi crimes against immigrants; immigrant crimes against German Jews; far-right parties gaining seats in state legislatures; the post-communists cannibalizing the democratic left—all there, all true.
But all this occurs against the background of the amazing success of German democracy since 1949, a story so big that it can be hard to see except at a distance.
The development of German constitutionalism seems especially glacial. Americans accustomed to looking to courts to propound grand declarations about law and rights will be disappointed by the caution of German jurists. In its first important case involving the rights of dissent, in 1957, the highest German court ruled for the government and against a person who had been denied a passport for political reasons. In the 1950s, the high court upheld the criminalization of homosexuality; in the 1970s, the high court prevented the decriminalization of abortion. There was no German Justice William O. Douglas ready to convert the grand language of article 1 of the German constitution into a wide charter of judicial power.
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And yet the rights of political dissenters, homosexuals, and women were protected, and strongly too. German society led the courts rather than the other way around, as so often in the United States. The constitutional idea drew its power from the complex workings of the German federal system, from the give-and-take of German parliamentary life, from a media culture that did champion dissenters and minorities, and from a public opinion that since 1949 has grown ever more self-confident and tolerant.
It’s a sobering mirror image for Americans, who have arguably over-relied on judicial guardianship even as their local government has become less democratic, their political culture more polarized, their media system more reactionary and extreme, and their public opinion more authoritarian.
Much of the success of Germany’s democratic development depended on unique circumstances of time and place. “Economic miracles” like that which buoyed German democracy from 1950 to 1970 don’t come along every day. (If they did, we wouldn’t call them miracles.) The Cold War incubated German democracy, too. Democracy gained West Germany entry into NATO in 1955; democracy drew a sharp distinction between the freedom of western Germany and the police state in the Soviet-controlled eastern zone.
Yet there are nonunique lessons too—lessons applicable to less-extreme democratic transitions.
In his superb history of the postwar aftermath in the two divided Germanies, Jeffrey Herf attributes this insight to Konrad Adenauer, West Germany’s first chancellor: You could have democracy in post-Nazi Germany or justice in post-Nazi Germany, but not both.