The End of the Centre

The Bundestag election has entered an entirely new phase due to the political shift within the Union parties in the final week of parliamentary sessions. A long-latent fundamental transformation of Germany’s political system thus enters a new stage. How can this shift be described, and what does it entail?

Forming new parliamentary majorities is a constitutive process in a parliamentary democracy. Even if the parties involved might deny it, such majorities express the will to collectively exercise political power by defining an agenda, objectives, and means of governance. The CDU/CSU attempt – once successful, once failed – to form a majority that included the far-right AfD thus fundamentally alters Germany’s parliamentary democracy.

With this decision, the CDU/CSU has destroyed the political centre that had been both its programmatic playing field and its condition for electoral success since the founding of the Federal Republic. This centre was defined not so much by specific policy content but by its distinction from the political extremes. That distinction no longer holds, as is proven by the hundreds of thousands of people who took to the streets last weekend to protest this closing of ranks with the AfD. The political right has now twice and unequivocally signalled its willingness to position itself as a unified right-wing bloc that includes extremist elements – so far, at least, in a single policy area. The question of why Friedrich Merz took this risk, and whether he miscalculated, concerns only his motives. A different matter should be the political assessment – especially with the upcoming Bundestag election in mind.

The experience of centre-right parties across other European democracies shows that embracing right-wing populism – whether through policy imitation or outright coalition-building – ultimately turns against them. Until now, Germany’s CDU and CSU have largely been the exception, steadfastly resisting this strategy. This has now been revealed as an illusion. There is much to suggest that the destructive dynamic driven by right-wing extremism, which tears apart center-right parties in a spiral of fear-mongering, radicalization, and governmental ambition, will now have its way with the CDU/CSU. Their leaders’ willingness to embrace disruptive politics, as evidenced by their blatantly unlawful proposals, leaves little room for doubt.

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The CDU’s insistence that what was desired and done was either not really wanted or not actually done does not change the reality of the situation. This is because the dominant position in this escalation clearly lies with the far-right, as demonstrated by the CDU’s unambiguous rightward shift at its party congress. No assurances of good intentions can alter the fact that the Union has entered a political space it cannot control. In a proportional representation system, it cannot absorb the hard right – the AfD owns that space. More than that, the AfD owns the narrative on which the Union now politically depends: a reality constructed by forces with vested interests, from the White House to the Kremlin, where migrant communities and violent crime are obsessively linked until a policy of violent isolation and fear can be portrayed as a necessary defense, which one can allegedly only refuse due to cowardice and a loss of reality. This narrative can no longer be dismissed as a peripheral consideration in determining the will of the majority. It has become its very subject. Whether this narrative will become the foundation of future government policy is now up for a vote in the Bundestag election.

What follows for the other parties, particularly those of the progressive spectrum? The election outcome and the formation of a new government will depend significantly on which parties recognize those new starting conditions most quickly, especially since the Union will likely continue to indulge in the half-cynical, half-naïve belief that support from the “wrong” side does not change the legitimacy of its ostensibly well-intended policies (“addressing people’s concerns”).

This shift finds namely the SPD, but also the Greens woefully unprepared. Their chancellor candidates have built their entire political careers on positioning their parties in the centre to ensure their coalition and governing capabilities. Unsurprisingly, both parties – especially the Greens under Robert Habeck – have instinctively sought to occupy the vacated centrist positions by offering a more moderate path to the same goals. The SPD has sent similar signals. Whether this strategy will yield short-term electoral success remains to be seen. However, what the other parties must now realise is the other side of the fallout of the far-right destroying the political centre: those who define themselves as opponents of the right can no longer rely on winning within a centrist political space that no longer exists – or that, at best, can only be rhetorically imitated with diminishing returns.

It may already be too late for the Greens and the SPD to respond adequately before the election. Doing so would have required extraordinary courage and effort but could have at least created an opportunity to shift the campaign’s momentum in the remaining two weeks rather than conceding defeat from the outset. After the election at the latest, all opponents of the right will face the questions they should have asked already. There are two alternatives to the habitual yet likely futile attempt to claim centrist positions – both of which carry significant risks but at least align with the political reality.

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A defensive strategy aimed at reconstructing the political centre would require forcing the Union to reverse its strategic shift. This could only be achieved through a categorical and unified rejection of any coalition under Merz’s leadership. The youth organizations of the SPD and the Greens have already expressed themselves in this direction. However, such a strategy would primarily need to target the intermediary institutions of the pre-political space that are functionally dependent on the existence of the political centre: public broadcasters, major associations, churches, and organizations like the German County Association. Their commitment to bipartisanship and proportional representation, which has been central to Germany’s constitutional order, was always based on the construction of a centrist political space, that is the exclusion of extremist positions. This is precisely why the AfD has made them a primary target. Whether they can still serve as guardians of the centre in the current climate is uncertain, but not impossible.

An offensive politics, by contrast, would acknowledge the loss of the centre and integrate the left. In this sense, the most promising approach would be to form a broad progressive alliance, extending into left-liberal circles, modelled after France’s Nouveau Front Populaire. Wouldn’t it have been a viable option for the SPD, the Greens, and the Left Party to shift the election campaign towards a common opponent? Such a shift would have aligned with the challenge this election presents to all who oppose the right. The willingness and ability to unite a majority against the politics of fear and its narratives – rallying around different facets of a democratic, solidarity-driven, and European vision – will ultimately determine who can become chancellor. The candidate who is most likely to accomplish this task qualifies as the leader of the entire non-right spectrum.

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Editor’s Pick

by FRIEDRICH ZILLESSEN

Photo: © universal pictures

Brady Corbet’s film The Brutalist is a monumental work that tells the story of the fictional Bauhaus architect László Toth, who survived the Buchenwald concentration camp and struggles to find his place as an immigrant in the USA. Shot on 70mm and set to an impressive score, the film is both epic and intimate: Corbet’s spaces sometimes open into infinity, sometimes close oppressively around his characters. The Brutalist takes its time (215 minutes!), unfolding gradually – yet never in a rush to resolve everything – while resonating like an echo in concrete halls. A true cinematic achievement.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

We are still processing last week’s final parliamentary sessions of the Bundestag. The fact that Friedrich Merz passed migration policy proposals with the votes of the far-right AfD proves particularly hard to digest. TARIK ABOU-CHADI (GER) explains from a political science perspective why any form of cooperation normalizes far-right parties even further.

LÉONIE DE JONGE (GER) can confirm this finding. She observes in the Netherlands how centre-right parties legitimize the radical right when they offer a hand to them. Let’s hope that shaking hands doesn’t turn into helping hands.

The proposals passed by the Bundestag are not only politically controversial but also legally, raising questions about their compatibility with higher-ranking laws. THOMAS GROSS (GER) examined one of the migration policy demands and clearly concludes: the proposed indefinite detention for deportation is unlawful.

Politics not only turns to migration law for simple solutions to complex problems but also to criminal law as could be witnessed in the emotional and scientifically unfounded political demands following the attack in the German town of Aschaffenburg. In a STATEMENT BY CRIMINAL LAW EXPERTS (GER), numerous signatories call for “evidence-based, rational criminal policy”.

German voters will elect the best problem-solvers in the upcoming snap elections on 23 February. Eligible voters include those living abroad, of course. At least theoretically – in practice, however, postal voting documents for this early election could be significantly delayed and, in the worst-case scenario, keep people from voting. JOHANNES SOCHER and RAPHAËL GIRARD (EN) therefore call on states to generally facilitate postal voting via diplomatic missions and official courier services.

People with disabilities face even greater barriers. Many will be unable to cast their vote in a general or secret manner, as a significant number of polling stations are not accessible – a violation of international obligations, as PHILIPP SCHÖBEL (GER) criticises.

In two noteworthy decisions, the Administrative Court of Berlin has now ruled that Russian conscientious objectors, due to the threat of being deployed in an unlawful war of aggression, are entitled to subsidiary protection. VALENTIN FENEBERG (GER) observes that the Court opposes the stance of the Higher Administrative Court.

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The upcoming German Bundestag elections will be decisive in shaping political agendas and priorities in Germany, Europe and beyond. At the same time, the country faces a risk of democratic decline as observed in several other EU member states due to a normalisation of far-right positions. How likely is it that the incoming government will adopt restrictive policies that undermine the rule of law? The resilience of Germany’s courts, political institutions and civil society may soon be put to the test. Join our panel debate to explore these and other topics here.

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Another remarkable ruling from Berlin: In November 2024, the Landgericht Berlin I classified the phrase “From the river to the sea” as a symbol of Hamas and convicted a defendant for using the insignia of a terrorist organization. ROBERT BROCKHAUS (GER) considers the ruling problematic, as the phrase is ambiguous and can be used in various contexts, even without reference to Hamas.

In times of constitutional crisis, we know that strong constitutional courts are crucial. The German one knew an advisory procedure in the 1950s, whose reintroduction is now being discussed. ALEXANDER WEHDE (GER) argues that this is not a good idea, as such a procedure could further politicize the court.

In a good old constitutional complaint procedure, the BVerfG has now ruled on a provision regarding football matches with a particularly high risk of violent confrontations. The court has paved the way for the increased costs associated with this type of match to be shifted onto the event organizers. The decision, however, only kicks-off the real legal game: LARS DITTRICH and SIMONE DITTRICH (GER) analyse the open questions and in whose court the ball now is.

Meanwhile, the EU and the UK have been arguing about in whose court the fish lies – the sandeel, to be precise. Last week, oral hearings concluded at the Permanent Court of Arbitration in The Hague. For the first time, a dispute between the EU and the UK under the 2021 Trade and Cooperation Agreement has reached the arbitration phase. EVA KASSOTI (EN) shows that the case has both the post-Brexit legal framework and the regulatory autonomy of the UK at its hook.

Neither the EU nor the UK, nor the sandeel, are alone in this world: they all share a habitat. The EU has, of course, replied with regulation – the Habitats Directive – which was also debated in The Hague, but in the District Court. The court has now ruled that the Netherlands violated the directive and its nitrogen targets. LAURA HILDT (EN) provides an overview of the ruling and argues that the case links the location specific approach of EU nature protection with a systemic dimension.

Nature protection can also be linked with artistic dimensions, as JENNY GARCÍA RUALES, LUIS ESLAVA, and VIVIANA MORALES NARANJO (EN) demonstrate. Using the example of the Amazon of Rights project, they describe how collective spaces can be opened through artistic-legal “mingas” to break up hegemonic thinking and foster eco-centric normativities.

On a less constructive note, the boundaries between law and art, fact and fiction, also blurred with the TikTok “ban” – which is, in fact, not a ban. PAOLO MAZZOTTI (EN) reconstructs how legal and political symbolism created the narrative of the “ban” and the responsibility that legal scholarship bears in the process.

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Meanwhile, private and public actors are blurring in the US. The US Supreme Court recently accepted a case that would allow charter schools – publicly funded schools with extensive autonomy – to become religious institutions, thereby securing public funds without constitutional obligations. GAURAV MUKHERJEE (EN) describes how this case might reshape the place of religion versus neutrality in the nation’s public life.

Even in foreign policy, neutrality is not exactly the US’s strong suit. Trump has been raging with tariffs, most recently as retaliation against Colombia after President Gustavo Petro had refused US deportation flights. JOSE ATILES (EN) outlines how the US has historically used unilateral economic sanctions as an instrument of imperial interventions, especially against Latin America. Given the substantial social damage, he calls for US sanctions in the region to be recognized as state crimes.

Latin America has long been at the vanguard of reproductive rights. The recent decision Beatriz v. El Salvador by the Inter-American Court of Human Rights, however, seems to mark a dangerous departure from its progressive jurisprudence. In the case against El Salvador – which has one of the most draconian abortion laws – the Court failed to defend established human rights standards, as ALICIA ELY YAMIN and SABRINA OCHOA (EN) note with concern.

The case of Beatriz would certainly have moved Lucy Thoumaian, whom FRANZISKA BACHMANN (EN) portrays for the February calendar of the “Outstanding Women of International, European, and Constitutional Law” project.

This week, we continued our symposium on “Musk, Power, and the EU: Can EU Law Tackle the Challenges of Unchecked Plutocracy?” (EN). ELENA GARCIA GUITIAN and LUIS BOUZA GARCIA warn against the democracy-threatening power of digital tycoons and examine the potential of current EU regulation to limit this very power. JULIAN UHLENBUSCH sees the Digital Services Act as an opportunity for the EU to address Musk’s power at its technological roots. We’ll publish the final contributions next week.

Our symposium on “The Omnipresence of Divergent Historical Narratives in Law and Politics” (EN) continued as well: MARIA MÄLKSOO (EN) explores how the Baltic states’ accountability-seeking for Russia are strengthening international criminal law. MARTIN SCHULZE WESSEL shows how Germany’s memory of the Second World War led it to recognize a special historical responsibility toward Ukraine. ANDREA PETŐ provides four reasons why illiberal politics was able to appropriate the memory of the Hungarian Revolution of 1956. PETER VERMEERSCH describes how exiled artists from Belarus reflect on their homeland and keep resistance alive through art.

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Please, dear readers, also keep resistance alive, whether artistically, politically, or otherwise.

Take care and all the best!

Yours,

the Verfassungsblog Team

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