It can happen here

von Maximilian Steinbeis

On Sunday, the SPD will hold its federal party convention, and then we will know whether Germany can expect to get a government capable of acting in the near future. For the time being, all we can do is wait and speculate about the future, about minority governments, about new elections, what the Federal President will do, what will become of Social Democracy, what of Germany, what of Europe…

The speculation that has kept me busy this week has little to do with the SPD and all the more with Germany. What, I wondered, would happen if an proto-authoritarian party like the Hungarian Fidesz or the Polish PiS ever got a majority here? What damage could such majority do while staying all the time, at least nominally, strictly within the framework of the constitutional order, without a coup d’état, without dissolving any institutions and without sending anyone to prison? How much protection against that contemporary form of proto-autocracy – ,authoritarian legalism’ is what Kim Scheppele and Javier Corrales call it – does the German Grundgesetz offer?

The one strand of speculation that really gives me goosebumps is about the Federal Constitutional Court.

Assume there was a majority in the Bundestag that decides that an overly strict control by the Constitutional Court is undesirable for what it intends to do. (If you consider this scenario unrealistic, I’d gently ask you to remember what you considered unrealistic before the 23rd of June and the 8th of November 2016, respectively.) What could this majority do to tie down the Court without openly violating of the constitution?

They could try to replace the judges with their own acolytes, of course, and thereby try to change the majority in the court, as happened in Hungary and Poland ...

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