The Past Is Prologue: Sticky Constitutionalism and the Case of Germany

• In Event: Constitutionalism in Comparative Context: Germany, Latin America, and the U.S.

Abstract

Scholars often credit the Basic Law with securing Germany's progress and stability in the decades following WWII. Indeed, it seems reasonable that a constitution would play an important role in a polity's welfare. And yet, at least some content of a constitution is likely not to be original, but rather inherited from a longer constitutional history. We argue that this is true of Germany’s Basic Law—that the very principles and institutions to which some attribute Germany’s success are often holdovers or “sticky features” from a longer constitutional history.

We argue that such inherited content deserves more attention in the narratives we tell about existing constitutions. Indeed, their successes, failures, and very identity may in fact be due to sticky features that have persisted through constitutional transitions. Speaking specifically of Germany, an accurate assessment of the Basic Law requires examining how much of its content was not first introduced with the Basic Law’s adoption, but was inherited from Germany’s longer constitutional tradition, what we term the constitution’s prologue.

To demonstrate the importance of history, or prologue, to the German story, we identify features that are frequently cited as essential to (or even innovations brought by) the Basic Law. These include, federalism, the social state, and equality. We then carry out a qualitative study, examining how these features occur (or do not occur) in all of Germany’s past constitutions, including the GDR constitutions. Contrary to common narratives, we find that these principles have recurred through much of Germany’s constitutional history. Far from innovations, they are well-established in the constitutional prologue. Our findings serve as a charge to constitutional scholars to look deeper into the past in the stories they tell about constitutions in the present.

Authors

• Christina Bambrick, University of Notre Dame

• Felix Petersen, University of Münster