The Paulinum auditorium of Leipzig University is one of the strangest interiors I have ever entered. A kind of Gothic church made of snowy plastic and plaster, with ribbed vault decorations on the ceiling and rows of pillars illuminated like a Cinderella castle. A monstrous, neither entirely sacral nor entirely secular, flashy/trashy product of and testimony to the awful mash-up 2000s through which five centuries of Protestant history shine through like a palimpsest. Crazy!
In this room, I had the honour and pleasure of moderating an event yesterday organised by Stiftung Forum Recht to celebrate the 30th anniversary of the Saxon state constitution under the title „Living the Constitution!“. To be honest, I was a little hesitant to accept the invitation. I tend to find such constitutional birthdays a tiny bit embarrassing. You put on a solemn face, dutifully mumble along with the liturgy of democracy, rule of law and human rights, listen absentmindedly to the sermons and readings and wait until it’s over and the booze is served. You wish you’d be more pious, you’d have read more in this scripture around which everything revolves, but the week has seven days and only one of them belongs to the Lord, so that’s how we poor sinners get through these things, and while it’s definitely important and a good thing to pay respect to the jubilarian every ten years, it’s still a bit of an ordeal.
The orthodox approach would have been to entrust such an event to those who serve at the altar of the constitution by profession: the incomparable German scholarly clergy called Staatsrechtslehrer. The organisers chose not to do that. I was the only jurist on the podium. Instead – good Protestants, apparently – they brought „civil society“ onto the stage: Living the Constitution! Lay people who are doing great projects telling how the Saxon constitution inspires them in the process. Oh dear, I thought.
In fact, the evening took a completely different course than I had feared, protestant crypto-Catholic of little faith that I am. I owe the organisers an apology, and I’m very thankful to them for having me.
Call for papers
The WZB Berlin and the Martin-Luther-University Halle-Wittenberg organize at the occasion of the upcoming 50th Anniversary of the Solange I-decision of the German Constitutional Court a Workshop and a Conference “Solange 50th Anniversary Conference: Constitutionalism beyond the state and the role of domestic constitutional courts” to be held in Berlin on 12 / 13 January 2023 (Workshop) and on 30 / 31 May 2024 (Conference). The deadline for submitting abstracts is 12 June 2022.
The remarkably uncontroversial leitmotif of this evening was that Saxons generally don’t seem to give much of a damn at all about their Saxon constitution. Spoken-word artist Jessy James LaFleur told of an encounter with a bunch of Nazis on a regional train. When she asked them what they thought about the Saxon constitution, the enemies of the constitution looked at her with blank incomprehension: No idea really. Never thought about it. In general, reported Roland Löffler, head of the State Agency for Civic Education, the most frequent answer by far to the question of what one thinks of the Saxon constitution is: Oh, such a thing exists?
That’s probably no different with most Länder constitutions. In the shadow of the larger-than-life Grundgesetz, not much is growing at the state level in general in that respect. But Saxony is a special case in several ways. For one thing, nowhere else in Germany does liberal democracy based on the rule of law appear as acutely endangered as here. For another, Saxony was the center of the peaceful revolution of 1989. In the land of the legendary Monday demonstrations, as Roland Löffler reminds us, the AfD did not dare to campaign with their „Vollende die Wende“ (complete the turn, i.e. the revolution) slogan, as they did everywhere else in the East. That would not have gone down well at all here.
The constitution is the product of this peaceful revolution, as Leipzig political science professor Astrid Lorenz pointed out. You can see it in the text, in Article 101, for example, which formulates the mandate to educate young people „to reverence of all living things, to charity, to peace and the preservation of the environment, to love of their homeland, to a sense of moral and political responsibility, to justice and respect for the convictions of others, to professional ability, to social action and to a liberal democratic attitude.“ That norm is so 1989, said Astrid Lorenz emotionally. The text of this constitution was argued and fought over, there were alternative drafts, there were compromises and votes, there was a broad majority to put it into effect, and there was a minority that accepted its being outvoted as fair, in short: quite literally, a functioning democratic system was constituted, and that was a good and strengthening experience for everyone.
In sharp contrast to the experience at the federal level. There, as is well known, the East Germans were denied participation in constituting the common German republic. Instead, they joined the West German Grundgesetz, which seemed perfectly natural to me at the time, along with most other West Germans and the episcopacy of West German constitutional law scholars: the book of books had already been written, we had our Basic Law and cordially invited our „brothers and sisters from the GDR“ to join our congregation, but to completely reconstitute ourselves as a new republic of Germans East and West, merely because of those guys and their peaceful revolution, appeared to us as an entirely outlandish proposition.
It is a characteristic of the imperial center that it never really sees the subjugated or yet-to-be-subjugated periphery. Viewed from London, Ireland was, viewed from Moscow, Ukraine is not a distinct entity, not a counterpart in its own right and with its own rights, but merely riffraff, primitive, stubborn, and dangerous, the fiercer they resist being like the center the more. The Federal Republic is no empire (or is it?), and Saxony is not Ireland, let alone Ukraine. But the West German gaze on East Germany in general and Saxony in particular, it seems to me, was nevertheless not free of this imperial arrogance then and still isn’t. Especially when cast from the erstwhile Reichshauptstadt.
We sit in Berlin and are the center. It’s only an hour and a half by train to Leipzig, and when we arrive at the main station, we can step outside the building via the „Saxon side“ or the „Prussian side“, each with its own huge entrance hall. Viewed from the former Prussian residence, Saxony has always been the closest other, distinct, opposite entity, which made it obvious to the Potsdam proto-Putin Frederick II as early as 1753 to invade it without much circumstance. We sit in Berlin, look south and see what? Riffraff, a place full of Nazis, Querdenker and Reichsbürger, unvaccinated and hateful, Germany’s remotest, most depopulated periphery stuck between open-cast lignite mines and the Polish-Czech border, much like Bavarians, just worse and with an even weirder dialect. That’s how Berlin looks at Saxony.
With me on the podium in Leipzig was Cathleen Bochmann-Kist from Aktion Zivilcourage e.V., an NGO that was founded 20 years ago in Pirna, in the middle of the Baseballschlägerjahre, and has been working ever since to ensure that there is something other than Nazi hatred in the villages and small towns of Saxony. With me on the podium was Jessy James LaFleur, who moved to Görlitz and started her project „Angeprangert“ to encourage young people in remotest, most depopulated Upper Lusatia to write spoken word poetry, giving them a voice in the most literal sense.
Saxony is full of people who put themselves on the line for democracy and against the Nazis every day with a level of courage and commitment that we in Berlin can only bow our heads to.
Council of Europe: Consultancy services needed for support to judicial reform in Serbia
The Council of Europe has launched a call for the provision of consultancy services in Serbia in the area of independence and accountability of the judiciary, internal organisation of the judiciary, judicial training and caselaw harmonisation.
The call for experts is launched under the framework of the Project “Support for the implementation of judicial reform in Serbia”, co-funded by the European Union and the Council of Europe, implemented for a period of three years (2022-2024).
Interested providers are invited to apply by 11 May 2022. https://go.coe.int/QYvQJ
And the constitution? Perhaps, said Cathleen Bochmann-Kist, it’s not the worst thing that no one cares about it. What does the constitution do? It constitutes and defines the institutions and procedures in which Saxons can negotiate and coordinate the peaceful coexistence of their different opinions, preferences and interests. It’s a highly technical, procedural thing, whose functioning can be seen exactly from the fact that one does not have to care how it exactly works, just as one recognises a functioning computer by the fact that one does not have to know anything about its operating system.
Those who celebrate the constitution and its birthday should not talk about norms. What is written in the text, whether this fundamental right is formulated in this way and that competence norm in that way, is something that only those nerdy constitutional clerics should take care of. What is worth celebrating about this constitution is the peaceful coexistence of highly different opinions, preferences and interests itself, which it makes possible – insofar as it makes it possible. This coexistence should be told about and the constitution be measured against, and the things Cathleen Bochmann-Kist and Jessy James LaFleur and so many others have to say that are worth hearing, also and particularly in Berlin.
From this perspective, this bizarre auditorium in Leipzig suddenly made sense to me: where it stands was until 2007 the place where the main building of the Karl Marx University stood, for which the ancient Paulinenkirche had to make room in 1968 at the order of the communist SED government in Berlin. That church had been a Dominican monastery until the Reformation; afterwards, it became both a parish and a university church as well as an auditorium, and in general, the relationship between church and university, pulpit and cathedra, is a very complex and interesting one, and even now there is apparently still a heated dispute about the sacral or secular nature of this space and the question of whether the baroque pulpit from the old church should find its place in it again, I was told. So the clash of all these highly different opinions, preferences and interests and their coexistence over the centuries is inscribed in this space, and I think that’s just great.
The week on Verfassungsblog
In the US, the Supreme Court is preparing to strike down a half-century of constitutional history and American women’s right to have their reproductive freedom protected from punitive majorities in conservative states. The draft opinion by Justice Samuel Alito, declaring Mississippi’s restrictive abortion law constitutional, has been leaked to the press. SARAH KATHARINA STEIN places the draft opinion in the US Supreme Court’s case law and in the history of the right to abortion in the US. VALENTINA CHIOFALO explores the question of what the draft decision means for the legal position of women and in particular their right to privacy and asks what this constellation would look like in Germany.
Can Germany become a warring party in Russia’s war against Ukraine if Ukrainian soldiers are trained in Germany? In order to be able to break this news, journalists have misrepresented an international law expert opinion in a way that, let’s say, puts the limits of journalistic due diligence to an extreme test. But certainly it made for quite a few quotes, so congratulations for that at least. STEFAN TALMON shows that the whole fixation on becoming a warring party or not is misleading. Germany does not become a party to the war by supplying weapons and training soldiers, nor would it give Russia the right to use force against Germany if it did.
Altkanzler Gerhard Schröder still does not want to let go of his friend Putin and thus raises a constitutional question that has rarely been asked before: What do a former chancellor and the republic actually owe each other? JANNIS LENNARTZ has the answer.
Our new blog debate on the role of parliaments in times of war is opened by YULIIA KYRYCHENKO and SUJIT CHOUDHRY with a contribution on the Ukrainian parliament and SAMUEL ISSACHAROFF with hopeful observations on the role of democracy in Russia’s war of aggression against Ukraine.
In the UK, the Tory majority in Parliament has changed the Electoral Act in a way that reduces the operating conditions of British democracy to party politics. JACOB EISLER shows why this is extremely worrying.
A victory of the Irish nationalist party Sinn Féin in the elections in Northern Ireland would be historic – also in constitutional terms. With a view to the Good Friday Agreement, Brexit and the Northern Ireland Protocol, COLIN HARVEY urges prudence. But the beginning of a new chapter in Northern Ireland’s history is undoubtedly at hand.
In France, three new judges were appointed to the Conseil constitutionnel in February and March. THOMAS PERROUD takes a closer look and shows that France’s constitutional court is made up of a majority of male, white, right-wing conservative elitists who come from political and administrative backgrounds. In a second post, he explains how this court works and it turns out that the appointment of judges is actually not as crucial as one might think, as the judgments are actually written by the legal department of the court’s administration.
The Italian parliament intends to make 26 January a day of remembrance for a battle from the Second World War. The battlefield is… in Ukraine. MARCO GOLDONI on a confusing decision, bad timing and what it all says about Italian constitutional culture.
In Latvia, a humanitarian scandal has been going on for months that few are aware of and even less interested in. It concerns the EU’s external border with Belarus and the refugees who are apparently kicked back and forth there in alternating pushbacks for months and are allegedly severely mistreated in Latvia in the process. ALEKSANDRA JOLKINA looked into the matter.
POLA CEBULAK and MARTA MORVILLO analyse the ECJ ruling on border controls in the Schengen area and its consequences.
How much automation can freedom of expression endure? FELIX REDA examines the ECJ ruling on Article 17 and explains why it affects not only upload filters in copyright law, but also the prohibition of general surveillance obligations in personality rights.
With the Anti-SLAPP Directive, the EU Commission is trying to combat abusive lawsuits against public participation. These lawsuits pose a great danger to civil society protest as a whole, as the threat can deter those affected from exercising freedoms protected by fundamental rights, reports JOSCHKA SELINGER. He welcomes the initiative and warns against its watering down in the further legislative process.
The Tübingen packaging tax is illegal, says the Mannheim Higher Administrative Court. MICHAEL DROEGE, however, believes that this is far from the last word on municipal taxation of disposable packaging in the fight against the climate crisis.
The Federal Constitutional Court has declared large parts of the Bavarian Constitutional Protection Act unconstitutional. However, the practical consequences of the ruling are likely to be limited, says KLAUS FERDINAND GÄRDITZ.
The problem that proceeds from Cum-Ex offences amounting to almost 177 million euros were time-barred under tax law and thus could no longer be collected by the treasury was supposed to be fixed by a retroactive legislative amendment. The Federal Constitutional Court recently ruled that this is not unconstitutional. A „happy ending“, says KILIAN WEGNER .
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.
In Nicaragua, the conflict between Daniel Ortega’s regime and the Organization of American States (OAS) has dramatically escalated. ALINA MARIA RIPPLINGER and FLORIAN KRIENER show why the search of OAS offices in Managua violates international law – and which obligations under the OAS charter continue to apply despite Nicaragua’s „immediate withdrawal“.
FELIPE OLIVEIRA DE SOUSA reports on the power struggle between Jair Bolsonaro and Brazil’s highest court. The conviction of a partisan friend prompted Bolsonaro to use his presidential power of clemency. Although the case is legally controversial, the main conflict is a political one.
Sri Lanka has been suffering from the worst economic crisis since independence for weeks. The reason for the crisis, says DINESHA SAMARARATNE, is a decades-long political culture of self-enrichment that has its roots in colonialism. However, there are also rays of hope: for the first time, many political demands of marginalised groups are being heard and shared by the majority. At the end of a „constitutional ping pong“ there could thus be reforms that will democratise the country.
As a late arrival, VIOLA NEU contributes a plea for assemblies in presence to our debate on the topic of „party congresses„, which was organised together with Stiftung Wissenschaft und Demokratie and the Institute for German and International Party Law and Party Research (PRUF) at the University of Düsseldorf.
Our blog debate with the Max Planck Institute for Comparative Public Law and International Law on security strategy is also coming to an end after more than 40 contributions. For Germany’s future security strategy, the turn of the times means that the international legal order and the military obligations that go with it must also become part of the national security interest, says MALCOLM JORGENSEN in the penultimate post of the blog debate. The capstone is a final reflection by ALEXANDRA KEMMERER, which will be published by us this weekend.
So much for this week. For those of you who haven’t decided yet to support us on Steady – what about a one-off donation? We’d be filled with joy and gratitude. What also works is a bank transfer (standing order?) to IBAN DE41 1001 0010 0923 7441 03, BIC PBNKDEFF.
Thanks a million, and all the best,
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