On March 25, 2025, the “new” German Bundestag began its work. While the government will likely consist of the familiar coalition of Social and Christian Democrats, it may face unprecedented challenges. In the new composition of the German parliament, the center parties no longer hold the two-thirds majority required to amend the German constitution—the Grundgesetz. After, in the “old” Bundestag, a parliamentary motion was adopted for the first time since the fall of the Nazi regime, only due to the support of the far right; some commentators have gone so far as to declare the end of the German political center. Shortly thereafter, the far right achieved record polling numbers in the federal elections. These circumstances raise the question of whether the German legal system is resilient enough to withstand periods of political instability. While the German Constitution is widely regarded as a success, some argue that it has primarily functioned as a “Schönwetter-Verfassung”—a constitution for times of “good weather,” a metaphor for periods of stability.
This written interview examines the state of German and European constitutionalism in times of rising authoritarianism.
Dieter Grimm is a professor of public law at Humboldt University in Berlin, a former judge of the German Federal Constitutional Court (1987–1999), and served as Rector of the Wissenschaftskolleg zu Berlin from 2001 to 2007.
Konstantin Kipp: Last year, while the 75th anniversary of the Grundgesetz was widely celebrated, a German politician called for a process to install a new constitution. He argued that, in times of increasing societal polarization—especially in Germany, where the historical division between East and West is still present—such a process could strengthen national unity. In an article you responded to this claim, arguing that there was no indication of a desire from the sovereign—the German people—for such a process. Do you believe the German constitution is equipped to handle times of crisis and political instability, or should the sovereign develop a stronger will to amend the document, at least in specific areas?
Dieter Grimm: The development of the Federal Republic was by no means harmonious. There were deep controversies in society and among political parties about fundamental political issues. Several political parties that rejected the political order established by the Basic Law were founded. There were even years of domestic terrorist threats. The Basic Law got along with these problems. The big number of constitutional amendments was not caused by existential challenges to the constitutional order. Most of the constitutional precautions against a repetition of the Weimar situation, such as the emergency rules, the constructive vote of no-confidence, the so-called eternity clause that protects the identity of the Basic Law against amendments, never had to be applied to prevent a system transformation from occurring. The concept of militant democracy led to two party bans in the early years of the Federal Republic and to a number of prohibitions of associations that fought against the free democratic order. In the first 75 years of its existence, the Federal Republic faced no serious threat to its constitutional order.
What is different about the current situation? In the past, the deep conflicts in society and among political parties played out within the framework of the Basic Law. Political parties that rejected the constitutional order were founded and disappeared without ever entering parliament. Today, there is a political party whose commitment to the Basic Law is in doubt. Yet, this party came in second in the February 2025 election, gaining 20% of the vote and almost all mandates in the former German Democratic Republic (GDR). Moreover, it operates in an international environment increasingly favorable to populism and authoritarianism, while traditional democratic parties continue to lose influence. Still, I don’t see how a new constitution would handle this situation better than the Basic Law. This does not exclude amendments aimed at strengthening the resilience of the constitution. In my view, the electoral system should be entrenched at the constitutional level to prevent a populist majority from altering it in its own favor. However, achieving this does not require an entirely new constitution.
In light of events in Hungary and Poland, German political parties recently adopted constitutional amendments aimed at strengthening the resilience of the Federal Constitutional Court (FCC) against authoritarian threats. Many key factors related to the independence and functioning of the court can now only be altered with two-thirds majorities in both the Parliament—the Bundestag—and the Bundesrat, where the federal states are represented. Given the current political circumstances, these amendments represent a significant success. However, they also raise questions. Most notably, many constitutional lawyers had called for stronger safeguards to protect the requirement of a two-thirds majority for appointing FCC judges—a quorum that has historically prevented political one-sidedness in the court. These calls have gone unanswered, and a simple majority in Parliament could still lower the quorum and appoint partisan judges. The exclusion of this issue from the reforms therefore appears questionable. What are your views on the amendments? Are they sufficient to safeguard the court’s independence and functioning in the future, or are further changes needed?
I was among the constitutional lawyers who strongly advocated for entrenching the two thirds requirement at the constitutional level (see my articles in the Frankfurter Allgemeine Zeitung on July 26 and the Süddeutsche Zeitung on November 2/3, 2024). The adopted amendments are useful, but they will be ineffective if a simple majority is able to fill the Constitutional Court with judges loyal to the ruling party. The Court’s impartiality is a prerequisite for the success of all other measures that have been taken.
Due to the deficit left by the recent constitutional amendment, a simple majority is sufficient to abolish the requirement of a two-thirds majority for the election of constitutional judges. The populist party is still far from reaching such a majority. Currently, the democratic parties would prevent this from happening, regardless of whether they form the government or belong to the opposition. For the more distant future, however, I don’t dare to make a statement.
The court also plays a central role in another topic heavily discussed by German constitutional lawyers and society in general: the potential application of the tools of militant democracy against the Alternative für Deutschland (AfD) or its representatives. Last year, more than a million people signed an online petition calling for the application of Article 18 of the Grundgesetz—which allows the FCC to declare the forfeiture of basic rights under specific circumstances—against Germany’s most notorious right-wing politician, Björn Höcke. The potential for a party ban procedure against the AfD is a constant topic of public discourse in Germany. Opinions among political scientists and constitutional lawyers on this issue vary widely—from those claiming that German parliamentarians have a “democratic duty” to initiate such a procedure, to others who emphasize the risks involved and label the current discourse as “alarmist”. What are your views on this debate? Is it legitimate for politicians to simply ignore the tools that the Constitution offers?
The Basic Law stipulates the conditions for a party ban procedure and allocates the relevant competencies. The right of initiative is regulated in the Statute on the Constitutional Court. According to paragraph 43, a motion may be brought by the Bundestag, the Bundesrat or the Federal Government. “May” is not “must”. The decision whether or not to seize the Constitutional Court, if the competent institutions find that the conditions for a ban might be met, is left to their judgment. There is no way to conclude that “may” means “must.” The competent institutions have discretion in this matter. I defend this solution. The choice whether to seek a ban on an extremist political party or to oppose it politically should be left to the political institutions. The Constitutional Court, on the other hand, has no discretion. If the competent institutions exercise their right and the motion is admissible, the Court is obligated to decide.
In the current situation, I would hesitate to recommend seeking a ban on the AfD. Such a ban would entail the far-reaching exclusion of a significant portion of the population from the democratic process at its most crucial point—the election. Those citizens would, of course, not lose their right to vote, but they would be unable to vote for their preferred party. This is especially important because citizens in East Germany, the former GDR, would be particularly affected by this measure, as the AfD is stronger there than in the West. The division between East and West would probably increase.
Current debates about the state of German democracy and constitutionalism place a strong emphasis on the judiciary as a safeguard against the rise of authoritarianism. This may seem counterintuitive, given that—though there are exceptions—German lawyers have not historically been staunch opponents of such practices. In contrast, in the United States, Prof. Mark Tushnet, in a 2023 open letter, urged the Biden administration to disregard U.S. Supreme Court rulings if they were based on gravely mistaken constitutional interpretations. Arguably, the court played a role in Donald Trump’s path to a second term. Following his re-election, Professors Samuel Moyn and Ryan Doerfler have recently argued that liberals shouldn’t count on courts to “save democracy.” While the situations in Germany and the U.S. are difficult to compare, should German lawyers, considering these debates in the U.S., be cautious about placing too much trust in the judiciary as a bulwark against authoritarianism?
It is true that the United States tends to resolve the tension between the rule of law and democracy in favor of democracy, while Germany tends to favor the rule of law. However, these are differences in degree, not mutually exclusive alternatives. I have no sympathy whatsoever for attitudes toward the law—at least in a democracy—that treat constitutional law as something less than law, meaning it binds politics only when convenient for those subject to it and ceases to be binding when it is not. I also believe that, in principle, legal requirements should be enforceable by courts. Historical experience shows that constitutional law—especially fundamental rights—gained legal significance only with the establishment of judicial review. A separate question is the extent to which acts of democratically legitimized branches of government should be reviewed—the right balance between activism and deference, so to speak. Excessive judicial activism can weaken rather than strengthen constitutional adjudication.
At the end of the last century, you participated in a debate about whether the European Union should adopt a Constitution. You argued that anyone calling for a European Constitution should be aware that it would ultimately push the EU towards becoming a state. Later, in 2004, this project ultimately collapsed when the Constitution for the EU was not ratified by all member states. Today some argue, that, over time, through legal doctrine and political practices, the European institutions have effectively forged a de facto constitution. Moreover, the EU is on a path towards its next enlargement and treaty amendments. Recently, in another interview on this platform, former ECJ judge Marek Safjan argued that it might be the last moment to carry out necessary institutional reforms to the EU, as the political center in the European Parliament remains quite strong for now. What is your perspective on the future of the Union? Do you believe the states of the Western Balkans will join the EU? What changes would need to be made, and can EU citizens hope for a closer Union?
I am still convinced that a European constitution, in the full sense of the term, would turn the EU into a state because full-fledged constitutionalism means the self-determination of a political entity regarding its political system and social relations. The EU lacks this power. It is externally determined in its existence, purposes, powers, institutions, and procedures. The Constitutional Treaty of 2004, which failed in two national referenda, would not have changed this. It would have remained a treaty under international law because the member states were not willing to hand over constituent power—or, if you will, sovereignty—to the EU. A sovereign EU would mean that the member states are no longer sovereign. The member states would lose the right to decide which competencies to transfer to the EU; instead, the EU would decide which competencies it takes from the member states. Today, it is difficult to imagine that the intention to transform the EU into a state would gain the consent of all member states. In Germany, the Basic Law prohibits such a move, and even a constitutional amendment would not be able to eliminate this obstacle, as the Constitutional Court ruled in its judgment on the Lisbon Treaty.
However, I am not opposed to further enlargement of the EU. But one should not repeat the mistakes made in earlier rounds of enlargement. Before they can become members, candidate states must prove themselves to be solid democracies and rule-of-law states in practice, not just on paper. Once they are member states, the EU’s means of ensuring compliance with its values are quite limited.
Regarding institutional reforms, I don’t think the EU needs a change to its basic structure. It is adequate for its nature as a supranational entity. A transformation into a parliamentary system, as is frequently postulated, would decrease rather than increase the democratic substance, because the societal infrastructure for lively political discourse is still lacking in Europe.
I would, however, recommend three changes in the interest of European democracy: first, a Europeanization of European elections, so that European political parties with European platforms compete instead of national parties, and voters have the chance to decide on European policies, not on national policies vis-à-vis the EU; second, removing all provisions that are not of a constitutional nature from the Treaties and downgrading them to secondary European law, so that these subjects are no longer excluded from the democratic process; third, the possibility of expelling member states from the EU that fundamentally and continually disregard European values. However, the latter two measures would require an amendment of the Treaties, which will be difficult to obtain.
In recent times, a trend of supranational cooperation among authoritarians can be observed. European right-wing populists with authoritarian aspirations from different countries praise each other and often cooperate closely. Furthermore, authoritarians from third countries are increasingly interfering with EU matters. The richest man in the world, Elon Musk, endorsed the German AfD, and in an era where the “Iron Curtain” no longer exists, Russia is engaging in transnational authoritarian repression. Do you believe internal, or external authoritarian pressure could influence EU law? Is there a risk that the EU might abandon the values enshrined in Article 2 TEU, or even begin promoting authoritarian ones?
Authoritarianism will certainly influence the EU, and even more so as more member states turn to that form of government, because populist parties gain power in the European Parliament, populist governments sit in the Council, and populism usually goes hand in hand with a revitalized nationalism. External authoritarianism will also affect the EU, as it alters the conditions of cooperation between the EU and such states. There is certainly a risk for the EU if values are reinterpreted everywhere. Reinterpretation, rather than open rejection, is the actual risk.
As for more forecasting, I don’t feel qualified.
