The Exiles' Return: Emigres, Anti-Nazis, and the Basic Law

Abstract

This dissertation traces the historical origins of several novel features of the postwar West German Constitution (Basic Law). Next to a legally enforceable catalogue of basic rights, the novelty of the 1949 Basic Law lay in articles outlining the forfeiture of those basic rights for any individual, organization, or political party who fights against the “fundamental liberal-democratic order.” This is a pillar of “militant democracy,” a term invented by the emigre jurist Karl Loewenstein, but a feature of German constitutionalism since it uses by the Federal Constitutional Court. That court occupies the position of “guardian of the constitution” in postwar Germany. Postwar “new German constitutionalism” (Kommers) was largely a project of the parliamentary left. Despite their historical aversion to judicial power, postwar German anti-Nazis transferred tremendous powers to the judiciary, especially state and federal constitutional courts. The following dissertation is a collective intellectual biography of the key anti-Nazi and emigre constitutional framers behind the state and federal constitutions. It examines their lives between the Nazi seizure of power in 1933 and the late 1950s, when the Federal Constitutional Court established itself as the final arbiter of German law. The Federal Constitutional Court with its powers of judicial review was not an American export. Rather, it was a German response to the circumstances of postwar occupied Germany. Judicial review came to Germany as an anti-Nazi measure designed to prevent the continued use of Nazi statutes in defense of war criminals. Judges in Allied-occupied Germany were asked to review statutes for their adherence to principles of justice to avoid light sentences for Nazi criminals. To counter the tendencies of a reactionary judiciary, anti-Nazi jurists campaigned for a lay judiciary with mixed results. The state constitutions of the American occupation zone provided the prototype for how a “militant democracy” would function in postwar West Germany. The state constitutions were anti-Nazi documents written in response to the horrors of the Second World War and the Holocaust. The framers of the state constitutions came from the ranks of recent re-emigrants and concentration camp survivors. The following dissertation examines their contributions to postwar law and politics.