Is the world’s best constitution out of date?

germany's grundgesetz, or basic law
The Basic Law. Source: Reuters

Germany’s Grundgesetz, or Basic Law, is widely regarded as one of the best constitutions in the world. With Germany in ruins and disgrace just three years after the end of World War II, a convention of experts met on an island in Bavaria’s Lake Chiemsee to enshrine democracy and human rights in a 95-page document whose first article declares that “Human dignity shall be inviolable.”

Their draft was finalized on August 23, 1948, after 14 days of discussion in a former residence of Bavaria’s “Mad” King Ludwig II and adopted with virtually no changes as the constitution of the Federal Republic of Germany nine months later, with the blessing of the occupying Western allies.

It created a stable political order that enabled the republic to thrive. But 70 years on, some constitutional experts are saying the Basic Law should be modernized to reflect developments that the 11 delegates could not have foreseen, such as the digital revolution, climate change, migration and globalization.

konrad adenauer signs the german constitution, basic law
Konrad Adenauer signs the Basic Law. Source: AP

Constitutional lawyer Joachim Wieland suggested amending the law to protect people’s privacy in the Internet age and to guarantee nationwide access to digital services. That latter point is one of the priorities of Chancellor Angela Merkel’s government, accused of failing to invest in the country’s digital infrastructure, which lags far behind rival economies.

“One could also think about sustainability as a state goal,” said Mr. Wieland. In addition, the Basic Law doesn’t address migration apart from providing the basic right to asylum, which Ms. Merkel cited in the 2015 refugee crisis. The influx of more than 1.6 million migrants since 2014 spawned the rise of the far-right Alternative for Germany party, now the third-biggest political force in a parliament of seven parties.

That is something the architects of the constitution couldn’t have wanted, and some experts are calling for the Basic Law to allow more direct democracy to restore faith in a system where many are starting to feel unrepresented.

“It’s one of the delusions of large parts of the post-war elites that purely representative democracy provides the best protection from totalitarianism,” Gertrude Lübbe-Wolff, a former judge of the Federal Constitutional Court, told Handelsblatt.

She said the parliamentary system with people trusting elected representatives to make laws on their behalf was essential to the functioning of the system. “But the increasing alienation between the people and their political representatives can’t be prevented by fundamentally excluding people from direct decision-making opportunities,” she said. “The opposite is true.”

frank-walter steinmeier at chiemsee
Frank-Walter Steinmeier, where the magic happened. Source: DPA

One area where constitutional experts see little need for change is with the economic principles in the Basic Law. True, some entrepreneurs see the fundamental guarantee of private ownership at risk from increasing restrictions on Chinese takeovers of industrial firms and from rent-capping policies in some cities. But Mr. Wieland said that wasn’t the constitution’s fault. “Instead you can debate what makes economic sense,” he said.

Even though updates may be needed here and there, most experts said the constitution continues to serve the country well. “I don’t see the rule of law and democracy as being in fundamental danger in Germany, even though annoying things happen now and again,” Ms. Lübbe-Wolff said.

Mr. Wieland said the Basic Law has stood the test of time thanks to a wealth of amendments that have prevented it from petrifying. And the Federal Constitutional Court, he added, enables the law to remain a living, breathing constitution.

“The court has kept on adapting the substance of the constitution to the development of society,” he said.

Heike Anger is a correspondent in the parliamentary editorial office of Handelsblatt in Berlin. To contact the author:

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