Every year on May 23, Germany celebrates the “Day of the Basic Law.” The Basic Law, Germany’s constitution, lays down fundamental rights, establishes the structure and administration of the Federal Republic of Germany, and sets out the legal framework of the three branches of government. Furthermore, it establishes the Federal Republic of Germany as a democratic, federal, and social constitutional state. In this blog post, I will briefly describe the history of the Basic Law and share a few interesting facts, including why the German constitution is not called a “constitution”.
After the total and unconditional surrender of Germany at the end of the Second World War, German borders were returned to their status as of December 31, 1937 and the country was divided into three occupation zones, each assigned to one of the three Allied Forces as had been agreed to by the United States (US), United Kingdom (UK), and the former Soviet Union (USSR) in the London Protocol of 1944. Berlin was given a special status under joint occupation of the three forces. On April 8, 1949, the western zones were merged.
On July 25, 1948, the eleven prime ministers of the German states in the western zones of occupation created a “Council of Experts on Constitutional Matters.” The Council met in Herrenchiemsee, Bavaria, from August 10 to August 23, 1948, and was charged by the Allied Forces with drawing up a draft constitution for West Germany. In September, the draft was forwarded to the newly convened Parliamentarian Council in Bonn for further consideration by the Council’s 65 representatives of the Western German states. On May 8, 1949, the Parliamentarian Council adopted the Basic Law (Grundgesetz) by a vote of 53–12. The Basic Law entered into force on May 23, 1949. Although at the time it was only applicable in West Germany, it was proclaimed in the name of the entire German people, East and West, and the original version of article 23 of the Basic Law explicitly codified German reunification as a goal.
Even after the Basic Law entered into force, the Allied Forces retained occupation powers, which were codified in the Occupation Statute of Germany. The Occupation Statute made every amendment of the Basic Law and adoption of new laws dependent on approval by the Occupation Forces. (Occupation Statute, arts. 4, 5). This situation remained in place until the repeal of the Occupation Statute in 1955.
In 1990, after the fall of the Berlin Wall, the government of the German Democratic Republic (East Germany) decided to join the Federal Republic of Germany and adopt the Basic Law according to the procedure set forth in the former article 23 of the Basic Law. On August 29, 1990, the German Bundestag (parliament) adopted a law agreeing to the accession. Five weeks after the accession, the first all-German elections took place and the first all-German Bundestag had its inaugural meeting on December 20, 1990.
The original edition of the German Basic Law is stored in a safe in the German Bundestag and is used to administer the oath of office to the German federal chancellor and the federal president.
In 2016 it was decided that a microfilm of the original edition should be moved to a secure underground storage facility (Barbarastollen) where other historical documents of cultural significance to Germany are kept. The underground archive has been used by the Federal Republic of Germany since 1975 to preserve movable cultural property from natural disasters or armed conflicts. It holds around 31.2 million meters of microfilm and it is estimated that the contents should survive for at least 500 years.
The Name “Basic Law”
People often wonder why the German constitution is called the “Basic Law” instead of the “constitution”. The drafters of the Basic Law did not intend for it to become a permanent constitution; it was created as a provisional document which would cease to exist once a constitution was “freely adopted by the German people“. The Basic Law itself was never ratified by the German people in a referendum.
One of the concerns about adopting a permanent constitution was that it would endanger the goal of German reunification. The Basic Law was only supposed to facilitate the administration of the Western zones of occupation and not establish a permanent nation “West Germany”. The provisional character was also noted in the original wording of the preamble which stated that the German people enacted the Basic Law desiring “to give a new order to political life for a transitional period.” Nonetheless, “c’est le provisoire qui dure” [the temporary will endure], as the French saying goes. The provisional “Basic Law” has proven its worth over the years and become a constitution. Instead of convening a constitutional assembly when Germany was reunited in 1989/1990, East Germany adopted the Basic Law. Minor revisions were enacted, but no complete revision took place.
Apart from the name “Basic Law”, the German constitution in its content, structure, and application has always been a full-fledged constitution. It formed the basis for the establishment of a free and stable democracy with a strong emphasis on respecting and protecting human dignity and other fundamental rights. The German people have formed a political attachment to its norms and values (“constitutional patriotism“). Other countries that transitioned from a totalitarian regime to a democracy have been inspired by the German Basic Law and by the jurisprudence of the German Federal Constitutional Court.
That just leaves me to say: “Happy birthday Basic Law!”