On Burrowing

What are we actually doing here? This question has accompanied Verfassungsblog since its inception. For me as a journalist, the answer has always seemed quite obvious: I find what constitutional scholars know interesting and want to make it accessible to my readers. That’s what Verfassungsblog is doing. On the side of academia, on the other hand, I encountered from the very beginning an irritated, alienated, defensive fascination, in Germany at least, which has meanwhile been somewhat supplanted by habituation but is still palpable from time to time underneath. Academia makes ample use of us, we are becoming more and more a normal, established, widely read publication medium, but at times it still can’t really make sense of us. What are you actually doing? Is it for our benefit? Or perhaps (also) to our detriment?

The Bielefeld history theorist Lisa Regazzoni recently published a splendid reflection on academic “blogging as a subversive practice” in the latest issue of the journal Mittelweg 36 (the whole issue is well worth the read) under the title “Writing against the Regime”, and in it she introduces a metaphor that I like more and more the longer I think about it: blogs, which since 2013 have been provided with ISSN numbers and could thus actually be cited, she writes, are still hardly ever listed in bibliographies or lists of publications in applications. “However, the ISSN allocation burrows away like a mole under the earth until the earth pile of revolution comes to light. All this burrowing, though not (yet) undermining the established publication formats, is, however, tilling the turf of the blogosphere into the soil of the established publication regimes.”¹⁾

Burrowing. That’s what we do. We burrow.

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The metaphor evokes a life below the surface of the earth, in the pitch dark, proverbially blind, which at first seems to fit poorly with the pursuit of the light of knowledge and the openness inherent in the word “veröffentlichen” (publish). But that is the view from above, the bird’s eye view. The mole’s eye view is: I have no idea where this is going, but here it seems to go a little further. So I keep digging. The mole is not working on any grand narrative, system, building, or map. He is always prepared to meet with rocks and clay lenses and not getting any further, doing his work in a permanent provisional mode d’essai, protected from predators and ill weather, alone with itself down there in the first person singular, but definitely in contact with the world on this and on that side of the earth’s surface and altogether a lawn-wrecking, gardener-annoying, but nevertheless ecologically valuable creature.

To what extent other authors of Verfassungsblog than myself recognise themselves in this metaphor, I do not dare to judge. But it goes even further. Back in the days of the Cold War, “mole” was a metaphor for the double agent, the traitor of traitors who undermines and subverts the border between Us and Them, spying both there for one and here for the other side. That too, it seems to me, is not such a bad fit. A subversive relationship to borders is clearly characteristic of what we do. We like to burrow away under all those neat demarcations and distinctions between states, affiliations, genders and hierarchical levels. That’s why some say: Verfassungsblog, they are left-wing. That, too, is a demarcation we like to undermine with gusto.

That perhaps explains some of the alienation we cause in academia. Science differentiates. It separates the coherent from the contradictory, the causal from the accidental, the proven from the presumed, the system from the environment and, last but not least, itself from the other: the scientific from the unscientific. This distinction serves its identity and its protection. It does not want to be undermined, infiltrated, colonised, pressed into political service, subjected to economies of attention. It is a defensive distinction, a border sometimes reinforced with barbed wire and watchtowers, not least in German constitutional law which has always been notoriously fond of hierarchy and authority.

But science also burrows. It shakes up doctrines, undermines certainties, shifts boundaries and overturns fences, and the fact that it does this while always reflecting on its horizons, methods and aporias is what makes it science in the first place and characterises its identity. That’s why it finds that digging around under its borders and distinctions interesting. As a research object. As an opportunity for self-reflection. And as a mode of academic writing and publishing. That brief, provisional, provocative essayistic form. Why not try it? Some like it. Some don’t.

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Semper Reformanda – Religionspolitische Reformperspektiven für die Kirchen

Am 24./25.6.22 findet an der HU Berlin eine von Georg Essen (HU Berlin), Isabelle Ley (MPIL Heidelberg) und Tine Stein (Uni Göttingen) organisierte Tagung statt, auf der das Kooperationsmodell von Kirchen und Staat auf den Prüfstand gestellt wird: Was bedeuten die fortschreitende Säkularisierung und die religiöse Pluralisierung der Gesellschaft für dieses Modell? Angesichts des Missbrauchsskandals, der Kritik am kirchlichen Arbeitsrecht und des Ausschlusses muslimischer Gemeinschaften vom Körperschaftsstatus stellt sich die Frage, wie das Verhältnis in Zukunft gestaltet werden kann.

Weitere Informationen und Anmeldung hier.

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In the fourteenth year of its existence, Verfassungsblog can no longer count as underground in any meaningful sense of the term. It is no longer a very subversive thing to publish a text here. On the contrary, it might be quite beneficial for your career, research funders are keen on “public impact”, citing Verfassungsblog posts has long become rather common practice in academia and the judiciary. It’s become part of the establishment.

Meanwhile, on social media, in Telegram groups, people keep digging, burrowing and undermining away like you wouldn’t believe, without hierarchy and in a most inclusive and subversive way. No this as opposed to that withstands their fury, no true as opposed to false, only for as opposed to against. If you look at who is doing the shovel work, however, it quickly becomes clear that these people are not at all about undermining borders, states, affiliations, genders and hierarchical levels, but on the contrary: they are mostly the ones who are scared shitless by this very undermining and who would very much like to finish off that whole cross-border infiltrating burrowing scuttling caboodle with poison and fire.

Which in turn drives us to position ourselves. To politicise. We are indeed not neutral in this respect, not objective, not just a forum for so-called intellectual dispute. We have skin in the game. Is that scientific? Difficult question.

But interesting!

The week on Verfassungsblog

… is summarized by our new (fanfare, please!) assistant editor PAULINE SPATZ:

To finance the upgrading of the Bundeswehr, the German government is to be authorized to borrow up to 100 billion euros. SEBASTIAN HUHNHOLZ  is skeptical about the current German “constitutional kick” of loosening parliamentary ties and financing shackles in favor of, of all things, an executive military treasury, and shows why the promise of special funds for the Bundeswehr is also a game of constitutional roulette.

Putin’s war against Ukraine has led the European Commission to declare “RePowerEU” to become independent from fossil fuels from Russia. EWAN MCGAUGHEY thinks that we should use the multiple legal possibilities of our European economic constitution to clearly say goodbye to all fossil fuels and switch to 100% clean energy as soon as technologically possible.

The German Federal Constitutional Court’s decision on civic investments in wind power stations indicates constitutional change, according to ANTONIA BOEHL. The climate protection goal of Art. 20a GG and the protection of fundamental rights against the dangers of climate change appear as a unity both in the guiding principles and in the reasoning. Although this does not create a new fundamental right, it does create a new interpretation of Article 20a GG.

The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment, Nils Melzer, who was in office until March of this year, has attested a “systemic failure” on the part of the Federal Republic of Germany in dealing with unlawful police violence. BENJAMIN DERIN & TOBIAS SINGELNSTEIN find that there is a structural deficit in the rule-of-law control of executive action that calls for appropriate compensation.

The ECJ addresses in its judgment Getin Noble Bank (C-132/20) questions on the judicial independence of judges appointed in an undemocratic regime or in a flawed procedure. Unfortunately, the ECJ takes a very formalistic approach to the definition of “court”, which leads to a weakening of the rule of law and judicial independence, comments PAWEŁ FILIPEK.

After a decade-long legal battle, the Israeli Supreme Court has ruled that the Israeli army may evict eight Palestinian communities in the southern West Bank in order to allegedly establish a military training zone in the area. ELIAV LIEBLICH lays out the basics of the legal dispute and the ruling, and sharply criticizes the eviction efforts and the ruling against the backdrop of international occupation law.

In Turkey, a defeat for Erdogan’s AKP seems to be within reach. This raises the question of how a potential new government should deal with AKP officials in the judiciary and the authorities. How can the erosion of Turkish democracy be reversed? CEM TECIMER has suggestions on possible strategies.

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Konferenz „9/11, zwei Jahrzehnte später: eine verfassungsrechtliche Spurensuche“

Gemeinsam mit der Bundeszentrale für Politische Bildung (bpb) und uns, dem Verfassungsblog, begibt sich die Gesellschaft für Freiheitsrechte e.V. anlässlich des Tages des Grundgesetzes am 23. Mai auf eine Spurensuche.

Als Abschluss einer Serie an Online-Symposien findet am 23. Mai die Konferenz „9/11, zwei Jahrzehnte später: eine verfassungsrechtliche Spurensuche“ digital oder vor Ort in Berlin statt. Hier geht es zum Programm und hier zur Anmeldung.

Wir wollen herausfinden, wie die Anschläge vom 11. September 2001 die Wahrnehmung und das Denken vieler Menschen und das Handeln von Politik und Sicherheitsbehörden verändert hat und wo damit unsere Grundrechte gefährdet werden.

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In our online debate on Parliaments in Wartime, RIVKA WEILL writes about why Russia’s demands for secession of Ukrainian territories cannot be constitutionally legitimized. IRINA KHMELKO takes a look at the role of the Ukrainian parliament during Russia’s war of aggression, and CHRISTOPH BIEBER explores how the Ukrainian parliament manages to digitally reinvent itself in the wake of the Covid-19 pandemic and the war.

The ongoing war in Ukraine sheds light on crucial challenges to our digital media landscape. The “(mis)information wars” triggered by social media around the Russian invasion highlight a growing epistemic divide that runs through liberal democracies. JOHANNES BUCHHEIM & GILAD ABIRI argue in favour of using the power of law to devise new modes of intelligent speech regulation adopting the functions formerly played by the centralized set-up of communication conditions.

On the example of Slovakia, MARTIN KOVANIČ shows in our 9/11 Symposium on Privacy why the unprecedented increase in mass surveillance by law enforcement and intelligence agencies is the most problematic byproduct of the fight against terrorism.

The 9/11 Symposium series entered its seventh and final round this week. Under the title of Rule of Law, EMRE TURKUT examines some of the many ways in which emergency powers have proliferated around the world since 9/11 and have become a permanent state. SUZIE NAVOT & GUY LURIE describe the consequences of this permanent state in Israel, using the Israeli government’s use of administrative detention without trial as an example. RICHARD ABEL examines the damage the Rule of Law has suffered since the U.S. declared war on terror over 20 years ago. KENT ROACH looks to Canada, where the government used the Emergencies Act this February for the first time since it took effect in 1988, and shows why even comparatively mild emergency laws are cause for concern. HANNAH RUSCHEMEIER examines the administrative security architecture in Germany in light of the development of the informational separation system.

In the event of a natural or industrial disaster that endangers life and property, the Hungarian government can declare a state of emergency and rule by decree, as it has done for the past two years. Hungary, in light of Russia’s war of aggression against Ukraine, now plans to amend its constitution to allow the government to declare this state of emergency also “in the event of an armed conflict, war or humanitarian disaster in a neighboring country.” For GÁBOR MÉSZÁROS, this is only the latest chapter in the history of the regression of democracy and the rule of law in Hungary.

So much for this week. Please remember to support us on Steady or to donate via Paypal or bank transfer (IBAN DE41 1001 0010 0923 7441 03, BIC PBNKDEFF). Thanks a million!

All best,

Max Steinbeis