People attend a demonstration against the Alternative for Germany party , right-wing extremism and for the protection of democracy in Duesseldorf, Germany, January 27, 2024.
Credit: Reuters Photo
By Andreas Kluth
The US may have the world’s oldest continuous democracy, but postwar Germany fancies its version — initially built under American tutelage — to be the best fortified and most defensible (the German word is wehrhaft). How intriguing, then, that both democracies are now having almost parallel debates about how to deal with the clash of populism and law, majoritarian democracy and constitutional liberalism. The underlying question is how to preserve any republic in the short term as well as the long.
Everything about the Federal Republic since 1949 was meant to guarantee that it would never fail as the Weimar Republic did in 1933 when it succumbed to Adolf Hitler. In recent years, some Germans — with a wary eye on the American demagogue Donald Trump — even came to think of their own post-traumatic hypervigilance as a psychological advantage relative to the overconfidence of American exceptionalism. That self-assurance is now largely gone.
The angst is about the Alternative for Germany, abbreviated AfD in German. It’s a far-right populist party that polls at about 20 per cent nationally, but around 30 per cent in Thuringia, Saxony and Brandenburg, regions in what used to be East Germany. In their elections this year the AfD could become the strongest party in their state assemblies.
The latest panic cycle began with a recent report by CORRECTIV, a non-profit organisation. Its undercover reporter got inside a hotel in Potsdam where right-wing extremists, neo-Nazis and members of the AfD met to discuss a secret plan to deport millions of people, including foreigners and German citizens of foreign descent if they were deemed insufficiently “assimilated.” The conspirators’ euphemism for the mass expulsion was “remigration.”
The echoes from the Nazi era were deafening. One proposal at the Potsdam gathering was to resettle all these ethnically unsatisfactory Germans in a “model state” in North Africa; in 1940, the Nazis considered deporting Europe’s Jews to Madagascar. Even the setting was eerie: The Potsdam hotel is a bike ride away from the villa where the Wannsee Conference took place in 1942, at which the Nazis hammered out the details of the Final Solution — that is, the Holocaust.
German society reacted to the revelations as any healthy democracy should. Hundreds of thousands have taken to the streets to protest against the AfD. One sign that particularly moved me when I saw it on social media was held by a young woman: “Now we’ll finally find out how we would have acted in our great-grandparents’ place.”
Such spontaneous resistance represents the antibodies in the immune system of postwar German democracy. But the republic also has the equivalent of Killer T cells. Those include provisions in its Basic Law, or constitution, to ban individuals from office, to withhold public financing from parties, and even to ban parties outright. The German debate is about which of these measures, if any, might be appropriate for the AfD.
The hurdles for a ban are high. Germany’s supreme court has outlawed only two parties, both in the 1950s; one was a Stalinist outfit, the other a copycat version of the NSDAP (as the Nazis were officially called). More recent attempts to outlaw a neo-Nazi party formerly called NPD and now Heimat failed in 2017. That’s because a party must be shown to be “aggressively” opposed to the republic’s liberal and democratic foundations and also capable of achieving its goals. The tiny NPD/Heimat didn’t meet the latter standard.
The AfD is large enough to pose a threat. And Germany’s domestic intelligence services have labeled three of the AfD’s regional branches “extremist” and “hostile to the constitution.” But the party platform carefully avoids language that a court would consider a smoking gun, and so far it has skillfully communicated its extremist messages in dog whistles and code. So a ban might fail.
An alternative is to invoke a different article of the constitution, tweaked in 2017 to lower the burden of proof if the goal is only to cut off a party’s public financing. But that clause was written with the NPD/Heimat in mind, whose public funding the supreme court finally cut off this week. The AfD could wriggle out of this one too.
A third option is to curtail the rights of individuals, which the constitution allows in certain circumstances. The first person who comes to mind, and the target of a petition to this effect, is Björn Höcke, the AfD’s chairperson in the Thuringian state assembly and one of the party’s most extremist leaders. Even without judging the entire AfD, the court could ban Höcke and his ilk from holding public office.
There are obvious differences between the German situation and the American drama during this election year. Höcke is no Trump, the AfD isn’t MAGA, and the German parliamentary system has no US-style electoral college.
But the similarities are still striking. Like the attendees at that Potsdam meeting, Trump and his cabal have plans for mass deportations. He dreams of “retribution” against his domestic enemies and toys with the question of whether he’d be a “dictator.” Above all, he incited a mob in 2021 to prevent the peaceful transfer of power to his successor as president. Even aside from his many other legal woes, that act of insurrection, under Section Three of the constitution’s 14th amendment, should bar him from holding office ever again.
But is it wise to pursue the respective cases before the supreme courts of Germany and the US? Here the controversies transcend law and enter politics.
A German court proceeding would take years, during which the AfD would play the victim and pretend that what’s at stake is not its disdain for the constitution but its freedom of speech. Its supporters would feel ostracised by mainstream society and might dive deeper into their conspiracy theories. Even if the AfD is banned, its voters wouldn’t disappear; they might go underground and radicalise, as a group called the Reichsbuerger did before its plot was discovered.
Something similar could happen if Trump is barred from running under the 14th amendment, or some combination of criminal convictions. He and his supporters would build on their Big Lie with the myth that the election of not only 2020 but also 2024 was “stolen.” (Recall that “Big Lie” comes from Hitler’s Mein Kampf.) The nation would be split and its institutions hollowed out.
That, indeed, is the paradox of institutions, and of republics generally. Whether they derive from written constitutions as in the US and Germany or unwritten ones as in the UK and Israel, they’re only as resilient as the people who give them life — the judges, lawyers, journalists, public and civil servants and voters. If I had to decide, I’d say bring on the court cases, in the US and Germany. But either way, there’s no escaping, through any legal hatch, from us.
As one philosopher observed when the first French republic started eating its own children, “every nation gets the government it deserves.” That’s true today from the US to Germany, and from Israel to Poland, India, Brazil and every other republic now buffeted by populism. Even when others don’t, we have to keep our speech civil, respect the truth, tolerate one another, honor institutions, and of course vote. That’s what Benjamin Franklin meant when he said that we have a republic, if we can keep it.