Red Card for the Red Card

von Maximilian Steinbeis

Dear friends of Verfassungsblog,

Red cards have been all over the place in recent times when it comes to the altercation between the right-wing populist AfD party and the German federal government. For readers unfamiliar with the popular pastime of football/soccer: when a particularly bad foul is committed by a player the referee will dismiss her from the game by showing her a piece of red cardboard. Which is what the AfD aspired to do in October 2015 with respect to Chancellor Merkel and her refugee policy by holding a demonstration under the motto "Red Card for Merkel", whereupon the Federal Minister of Education Johanna Wanka pulled her respective red card to send the AfD off the field, by reason of the AfD being home to a great many people inclined to shove all numbers of red cards into the faces of Muslims and other minorities. Observers might be forgiven for losing track of who plays foul, who is played foul against, and who is blowing the whistle.

This week, the Federal Constitutional Court tried to disentangle the situation at a public hearing. The AfD had filed a constitutional complaint because Education Minister Wanka had published her "red card" press release on her ministerial website. This is, in fact, a problem under the jurisprudence of the FCC: The state, according to the II. Senate, has to abstain from interfering in the formation of the democratic will of the people which is to be formed from below to above, "from the people to the state organs, not vice versa from the state organs to the people". Political parties, on the other hand, do exactly that: According to Art. 21 of the Basic Law it is emphatically their job to "participate in the formation of the political will of the people" ...

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