Marx, Enemy of the Constitution?

Is it constitutionally permissible to hold a Marx reading group in the German Republic? According to a recent judgment of Hamburg’s Administrative Court¹⁾: unclear. A reading group can apparently only take place without state interference as long as it does not “actively and combatively” promote Marx’s ideas, since “the social theory formulated by Marx” is in essential points “incompatible with the principles of the liberal democratic basic order” of the Federal Republic.

The case concerns the Marxistische Abendschule Hamburg (Marxist Night School Hamburg, or MASCH). MASCH sued the Hamburg office of Germany’s domestic intelligence agency (the Office for the Protection of the Constitution) because the reading group had been included in the office’s 2021 intelligence report. While the Hamburg Administrative Court ruled in favour of MASCH, ordering it be struck from the report, the court’s judgement explicitly denied Marx’s loyalty to the constitution. (See further here).

The judgement is worth examining in detail, because it not only reveals the judges’ ideological, prejudiced and factually unfounded understanding of Marx, but because it showcases the democratic limitations in the hegemonic concept of a “liberal democratic basic order” (freiheitliche demokratische Grundordnung, or as it is usually abbreviated fdGO). Contrary to the Hamburg court’s judgment, key components of Marx’s political commitments are in fact in line with those of the German Constitution, and where Marx proposed alternative political institutions, he did so out of deeper democratic convictions than those that underpin the official understanding of a “liberal democratic basic order”.

The judges’ interpretation of Marx

The judges of the Administrative Court try to substantiate Marx’s alleged hostility to the constitution in a long, questionable paragraph on his political ideas:

“The activity of the plaintiff, centered on the theories of Karl Marx, stands in principled contradiction to the liberal democratic basic order. The social theory formulated by Marx – with which the plaintiff concerns himself – is likely in essential respects incompatible with the principles of the liberal democratic basic order as set out in § 5 para. 5 of the Hamburg Law on the Protection of the Constitution (HmbVerfSchG). The “proletarian revolution” and the “dictatorship of the proletariat” proclaimed by Marx are regarded by him as a necessary precondition for replacing capitalism with socialism and ultimately achieving a classless communist society. Thus, according to Marx, between the capitalist and the communist society lies the period of revolutionary transformation of the one into the other. Corresponding to this transformation, according to Marx, is a political transitional period, where the state can be nothing other than the revolutionary dictatorship of the proletariat. This dictatorship of the proletariat, described as the “fully developed true democracy,” stands in contrast to the “concealed democracy of the bourgeoisie” (see www.staatslexikon-online, 8th ed. 2022, entry: Dictatorship of the Proletariat). What Marx called a “true democracy,” was not a model of democracy based on a representative body arising from universal, direct, free, equal, and secret elections, but rather the political rule of the so-called working class, which necessarily excludes other sections of the population from participation in political decision-making and the unmediated exercise of state power. The task, according to Marx, of asserting proletarian state power against the bourgeoisie that is to be overthrown, leads to such rule appearing openly dictatorial. According to the “Manifesto of the Communist Party”, the proletariat will use its political rule to gradually wrest all capital from the bourgeoisie and to centralize all instruments of production in the hands of the state, i.e. the proletariat organized as the ruling class; which is to take place “by means of despotic inroads” and “by force.” Absent from the rather rudimentary ideas of a social order in Marx’s works – which do not describe any specific institutional form of governmental power and in which it remains unclear whether the proletariat as a whole or individual groups and parties should direct state affairs, control the economy, and suppress class opponents – are both the constitutional right associated with the democratic principle of the liberal democratic basic order to form and exercise an opposition, and the constitutional principles of the separation of powers and independent courts. Meanwhile, the powers and activities of the state with respect to the tasks described by Marx and Engels (including the nationalization of enterprises, the development of a “common plan,” and state credit institutions) are substantially expanded, while the democratic freedoms of the individual are correspondingly greatly reduced.”

Had this paragraph been submitted as part of an essay for a course in the history of ideas, it would have undoubtedly been failed: because of its inadequate, biased and questionable interpretation of primary texts; its failure to consult alternative sources; and its reliance on a single, secondary source, from which it seems, as we will see, parts have been extracted, without proper citation.

As nearly every sentence in this paragraph is problematic, it is best to take them one by one.

Dictatorship of the proletariat

“The ‘proletarian revolution’ and the ‘dictatorship of the proletariat’ proclaimed by Marx are regarded by him as a necessary precondition for replacing capitalism with socialism and ultimately achieving a classless communist society.”

The judges here manage to present a defensible summary of Marx’s political ideas, but without ever asking themselves what exactly Marx meant by the easily misleading phrase “dictatorship of the proletariat”. As the Marx scholar, Hal Draper, showed in his exhaustive, authoritative study, Marx used the phrase much less frequently than subsequent discussions would suggest.²⁾ Where Marx (and Friedrich Engels) did employ the phrase, it functioned as a counter to the anti-democratic tendencies of many 19^th century socialists, who defended a “dictatorship over the proletariat”, in which a small group of professional revolutionaries would seize state power and rule over the (in their view) still uneducated proletariat. Draper further warns against simply equating what we today understand by “dictatorship” with what Marx and his contemporaries would still have in part understood by that idea, namely the Roman institution of a Dictator as a temporary and lawful state of emergency rule. Such historical nuances are completely absent from the judgement of the Hamburg Administrative Court, where “dictatorship of the proletariat” is simply equated with the 20^th century experience of party dictatorship in the German Democratic Republic.

“This dictatorship of the proletariat, described as the “fully developed true democracy,” stands in contrast to the “concealed democracy of the bourgeoisie” (see www.staatslexikon-online, 8th ed. 2022, entry: Dictatorship of the Proletariat).”

If we look at the cited encyclopaedia entry in the Staatslexikon, it swiftly becomes clear that the judges extracted nearly their entire understanding of the dictatorship of the proletariat from it, often verbatim and without proper citation.

In the Staatslexikon, we find for instance: “Moreover, it remained unclear whether the proletariat as a whole or individual groups and parties should direct state affairs, control the economy and suppress class enemies,” which is reproduced almost word-for-word in the judgment without citation. Partial sentences like “such rule appearing openly dictatorial” and “do not describe any specific institutional form of governmental power”, are revealed to be inexact quotes from the German translation of Eric Hobsbawm’s How to Change the World: Tales of Marx and Marxism (2011), which had been cited (correctly) in the Staatslexikon. Finally, it becomes clear that the quotations in the court’s judgement from Marx and Engels’s “Manifesto of the Communist Party” are exactly those which already appear in the Staatslexikon, and that the respective surrounding sentence is only a rewording of that in the Staatslexikon. Accordingly, it can be concluded that the only seeming reference to a primary Marx source in the judgement in fact indicates that the judges very likely did not even read the text themselves.

Judges are not historians or scholars. But when they casually brand a thinker as an enemy of the constitution, then the least we can expect is that they consult more than a single secondary source.

Universal suffrage

“What Marx called a “true democracy,” was not a model of democracy based on a representative body arising from universal, direct, free, equal, and secret elections”

Had the judges cared to read Marx’s writings, it would have been impossible for them to write this sentence. In the 17 “Demands of the Communist Party in Germany”, promulgated by Marx, Engels and their allies one month after the publication of the “Manifesto of the Communist Party”, the very second demand read: “Every German, having reached the age of 21, shall have the right to vote and to be elected…”³⁾

This demand for universal suffrage was a lifelong commitment for Marx, which he defended as a necessary political precondition for social emancipation. The justification for this position was concisely summarised in Marx’s reporting on the Chartists (the British workers’ movement fighting for a democratic constitution):

The six points of the Charter which they contend for contain nothing but the demand of Universal Suffrage, and of the conditions without which Universal Suffrage would be illusory for the working class; such as the [secret] ballot, payment of members, annual general elections. But Universal Suffrage is the equivalent for political power for the working class of England, where the proletariat forms the large majority of the population… The carrying of Universal Suffrage in England would, therefore, be a far more socialistic measure than anything which has been honored with that name on the Continent. Its inevitable result, here, is the political supremacy of the working class.⁴⁾

Here it is clear that Marx even valued universal suffrage higher than any particular social reforms, because it would enable workers to convert their majority in the population into a political majority in parliament, and thereby bring about an encompassing socialist transformation.⁵⁾

Thus, contrary to the judge’s claims, Marx would be in complete agreement with Article 38(1) sentence 1 of the Constitution (“Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections.”)

The judges, however, manage to completely overlook where Marx’s democratic commitments do in fact go beyond the Constitution. Namely, with regard to the right of elected representatives, also enshrined in Article 38(1) sentence 2, to “not be bound by orders or instructions”. Marx would have had little sympathy for this right to a free mandate. As his support for the Chartists’ demand for annual elections indicates, Marx was a supporter of the so-called imperative mandate, where representatives are tightly controlled by their constituents. He therefore defended the idea that representatives should be “at any time revocable” so that they cannot “misrepresent the people in Parliament”.⁶⁾

The imperative mandate is not reconcilable with Article 38(1) sentence 2 of the Constitution. But is one therefore automatically an enemy of the constitution, when one defends it out of democratic conviction?

 “[…] the political rule of the so-called working class, which necessarily excludes other sections of the population from participation in political decision-making and the unmediated exercise of state power.”

The judges do not supply any evidence for this statement, nor could they have, since none can be found in Marx’s works. The Soviet decision to deprive non-workers of the right to vote in the 1918 Constitution (Articles 64 & 65) has no basis in Marx’s writings.⁷⁾ For Marx it was clear that universal suffrage was to apply to all: workers and capitalists. For example, he supported the fact that the bourgeois opponents of the 1871 Paris Commune were, even after an armed demonstration, “like all other Paris citizens, allowed to try their hands at the ballot-box for the election of the Commune”.⁸⁾

Coercion and violent revolution

“According to the ‘Manifesto of the Communist Party’, the proletariat will use its political rule to gradually wrest all capital from the bourgeoisie and to centralize all instruments of production in the hands of the state, i.e. the proletariat organized as the ruling class; which is to take place ‘by means of despotic inroads’ and ‘by force’.”

As was already indicated above, it is unlikely that the judges read the “Manifesto” themselves. Otherwise, they could have read, for instance, “that the first step in the revolution by the working class is to raise the proletariat to the position of ruling class,

to win the battle for democracy.”⁹⁾ Or how Marx and Engels attack antidemocratic socialists for belittling democratic movements like the Chartists and for “hurling the traditional anathemas against liberalism, against representative government, against bourgeois competition, bourgeois freedom of the press, bourgeois legislation, bourgeois liberty and equality, and of preaching to the masses that they had nothing to gain, and everything to lose, by this bourgeois movement.”¹⁰⁾ The “Manifest” as a whole is the result of a prolonged effort by Marx and Engels to convince their communist comrades of the necessity of democracy and civic rights for socialist transformation.¹¹⁾

The judges take exception to Marx and Engels’s description of this transformation as taking place “by force” and “by means of despotic inroads”. But anyone reading the text will quickly recognise that Marx and Engels are here referring to measures to restrict the private ownership of the means of production (and not, for instance, to measures to suppress a bourgeois opposition). As was discussed above, Marx and Engels believed that such socialist measures should be carried out by a democratically controlled state. The judges should know that such democratically legitimated measures would, of course, like any legal directive, be “coercive”, in the sense that everyone would have to comply with them. Although this is often forgotten, Article 15 of the German Constitution allows for exactly this kind of “socialization” (Vergesellschaftung) of the means of production. The phrase “despotic inroads” is certainly a clumsy choice by Marx and Engels, but it seems to me to be more directed at the fact that such measures are likely to be perceived as despotic by the existing owners of the means of production, rather than that they should be carried out despotically.

To the bigger question of whether Marx believed that a socialist transformation should occur “violently”, as the judgment repeatedly implies, the answer is complex. Marx was convinced that a violent revolution against the despotic regimes of 19^th century Europe (the immediate context for the “Manifesto”) was justified.

Marx left open whether a subsequent violent revolution against a government that conformed to today’s understanding of a “liberal democratic basic order” would be necessary. Here it helps to remember that such regimes barely existed in Marx’s lifetime. In 1872 he argued that “in most countries on the Continent it is force which must be the lever of our revolution”, but that in “countries like America, England, and…[maybe] Holland” (precisely those countries that were most democratized), “the workers may achieve their aims by peaceful means.”¹²⁾

Marx had a clear preference for a peaceful route: “In England, for instance, the way to show political power lies open to the working class. Insurrection would be madness where peaceful agitation would more swiftly and surely do the work.”¹³⁾ But Marx remained skeptical that a bourgeois minority would actually “accept the verdict of the majority” and restrict itself to purely peaceful and legal agitation, if a socialist government came to power democratically.¹⁴⁾ Such a violent counterreaction would, Marx argued, need to “put down by force”, but as Marx rightly recognized, the democratically elected socialist government would then itself be “the ‘legal’ authority”.¹⁵⁾ The Hamburg judges follow exactly the same logic when they classify groups that “actively and combatively” oppose the liberal democratic free order as enemies of the constitution.

The proletariat as a whole

“[…] the rather rudimentary ideas of a social order in Marx’s works – which do not describe any specific institutional form of governmental power and in which it remains unclear whether the proletariat as a whole or individual groups and parties should direct state affairs […]”

It is true that Marx was critical of utopias that sought to dictate precisely what socialism should look like. But his writings on the Paris Commune do give us some idea what he imagined a future government could look like. One important element was, as we discussed above, that representatives should operate under the close control of their constituents, through measures like recall and annual elections.

The Paris Commune also shows how clear it was for Marx that it was the “proletariat as a whole” and not “individual groups and parties” that should direct the state. For one, he defended the attempts of the Commune to transfer public administration out of the hands of the bureaucracy and into those of the people. Public officials were to be elected and recallable and receive a worker’s wage. Large swathes of the proletariat would thereby be incorporated into the self-administration of public life. Moreover, Marx had no problem referring to the Paris Commune as a “working-class government” even though the representatives to which he was closest (the members of the International Workingmen’s Association) were a distinct minority in the Commune Council – an indication that what mattered to Marx was not a sole governing party, but the broad support and cooperation of the proletariat as a whole.¹⁶⁾

Separation of Powers

“Absent […] are both the constitutional right associated with the democratic principle of the liberal democratic basic order to form and exercise an opposition, and the constitutional principles of the separation of powers and independent courts.”

I have already discussed the right to form and express opposition. It is undeniable that Marx was in some respects a critic of the separation of powers. He once polemically described it as “the old constitutional folly”.¹⁷⁾ But the judges are completely wrong when they accuse Marx of rejecting “independent courts”.

Marx’s criticism of the separation of powers has little to do with the judiciary itself; he is primarily concerned with the relationship between the legislature and the executive. Marx viewed the legislature as the most democratic part of the constitution and believed that the executive all too easily escaped the control of the people (“executive power, in contrast to the legislative, expresses the heteronomy of the nation, in contrast to its autonomy.”)¹⁸⁾

A division of power between the executive and legislative was thus, for Marx, in fact a way to unduly restrict democracy. Studies of the intellectual history of the separation of powers show that the theory was defended by many of its supporters for precisely this reason.¹⁹⁾

Marx criticised constitutions that concentrated executive power in the hands of a president at the expense of the legislative branch. The 1848 Constitution of the French Republic came in for particularly sharp criticism by Marx, because of how it gave the president the right to appoint and dismiss ministers, pardon criminals, dissolve local and municipal councils, conclude international treaties, and also entrusted him with the command of the armed forces and the state bureaucracy. Marx diagnosed this concentration of power as a fatal error that paved the way for the end of the Republic through the coup d’état of President Louis Napoleon Bonaparte (later Napoleon III).²⁰⁾

Instead, Marx advocated the clear subordination of the executive to the legislative. He praised the Paris Commune for placing the police, civil service, and armed forces under the authority of the elected Commune Council and for being itself “a working, not a parliamentary, body, executive and legislative at the same time.”²¹⁾ Marx was referring to the fact that the Commune Council was organized without a separate, independent executive, instead dividing the various ministerial responsibilities (education, labor, finance, etc.) among a group of five to eight deputies each, led by a chairman elected by the entire Commune. That meant that around two-thirds of the roughly 90 deputies simultaneously had both an administrative and a legislative role.²²⁾

While this is not standard modern constitutional practice, it is also not far removed from the current European understanding of the separation of powers (where ministers and prime ministers often also sit in the legislature).²³⁾ Marx’s criticism is primarily directed at the kind of separation of powers found in the USA, where the executive and legislative branches are entirely separate, and the former is endowed with excessive power (as we are forced to painfully observe every day).

Let us briefly return to the judiciary. From his earliest disputes with the Prussian government, Marx always defended the independence of the judiciary from the executive. In his discussion of the Commune, he even proposed that the judiciary’s current “abject subserviency to all succeeding governments” should be ended by making judges “elective, responsible, and revocable.”²⁴⁾ The judges of the Hamburg Administrative Court may fear this democratization of their public positions, but that does not necessarily make it unconstitutional.

Marx and freedom

“Meanwhile, the powers and activities of the state with respect to the tasks described by Marx and Engels (including the nationalization of enterprises, the development of a ‘common plan’, and state credit institutions) are substantially expanded, while the democratic freedoms of the individual are correspondingly greatly reduced.”

Ultimately, this criticism has less to do with Marx directly than with the democratic debate over whether the transfer of our economic lives from the market to collective and democratically governed institutions would reduce freedom or perhaps even expand it. This is an ongoing societal dispute within which the Hamburg judges have hereby clearly positioned themselves. However, we as citizens also have the right to think, read and act differently. Ironically, the judges of the Hamburg Administrative Court would benefit from a Marx reading group to better participate in just such a debate.

This is a translated version, by the author, of the article “Verfassungsfeind Marx? Zur Verfassungs(un)treue von Karl Marx”