The Paradox of Constitutionalism

The refugee crisis puts Germany to the test. At the practical level, we have to find a fair distribution mechanism and integrate hundreds of thousands of traumatized people. But there also arises a challenge at the more fundamental level of our constitutional architecture. A view that is widely shared among politicians and legal theorists is that the German constitution (the Grundgesetz) integrates two political values: respect for universal human rights (Article 1: “Human dignity is inviolable”), and democratic sovereignty of the nation (Article 20 “All state authority emanates from the people”). However, in his essay “The Naked Human” from March 22, 2016, Frankfurter Allgemeine Zeitung author Mark Siemons shows how the refugee crisis brings these values in an irreconcilable conflict.

At first glance, Siemons writes, human rights and national sovereignty even supplement each other. Modern democracy cannot exist without universal values. And to protect these, the sovereign state is indispensable. But this reading seems to “implode as soon as the nation state applies the universalist principle to itself in a tense situation and ends up in conflict with its sovereign (the people).” Put differently: if the government refers to the universality of human rights and, hence, grants refugees shelter, and if the population refers to their national sovereignty (“We are the people!”) in order to rebuff this policy decision, then the supposed complementation turns into a paradox. The renowned legal theorist Ernst-Wolfgang Böckenförde has already pointed out this paradox: A democratic state turns into a dictatorship once it seeks to enforce a constitutional value against the sovereign people. It simply cannot guarantee its own foundations. Thus Siemons draws attention to a critical weak spot of the German constitution by addressing the political upheavals around the refugee crisis. He does not offer a solution, but then again he cannot. That is the nature of a paradox. Rather, he ends with the vague question of what the European Union as a supranational network can do in this conflict.

But we should dig deeper. This begins with the concept of popular sovereignty which the opponents of the current pro-refugee policy claim for themselves as a matter of course. This notion, however, is notoriously elusive. This is already indicated by Georg W. F. Hegel. He warns in the “Elements of the Philosophy of Right” not to confuse the sovereign people with a mere “aggregate of individuals.” But what distinguishes sovereign people from an “aggregate”? According to Hegel this distinction is made by a reflected political will – that is, by a will that does not blindly follow spontaneous inclinations, but is capable of critically evaluating, revising and abandoning its desires. According to Hegel, this capacity for reflection is the “principle of right, of morality, and of all ethics“. The antonym of this reflected concept of will is, in Hegel’s baselines, arbitrariness. It is the feature of the “aggregate” which insists on its particularistic position and which is either unwilling or unable to examine his own desires and inclinations in the light of rational reasons. Consequently, there are high standards for those who avail to speak on behalf of the sovereign people. And it is doubtful whether the vociferous protagonists of the current debate are up to these standards.

Nevertheless, it must be noted: Even a reflected popular will can collide with the principle of universal human rights. Namely, if the moral obligation to render assistance becomes an excessive burden – as is the case in the current European political system where there is an extremely uneven distribution of burdens. This dangerous collision cannot be solved with a simple priority rule. Those who advocate the unconditional primacy of morality over the interests of the nation are ultimately declaring the concept of the nation to be obsolete. Those who claim that the national interest is categorically superior to the requirements of morality fail to acknowledge humanitarian commitment of their country. If there is no categorical rule to follow, then we must use our own political reason. Political reason, the ethicist W. D. Ross has noted, is ultimately the ability to make sound weightings between incompatible goods. All we can do is to constantly weigh off goods – on the one hand, the severity of the humanitarian emergency, on the other hand, the national interest. Obviously, these weightings will never materialize in a perfect balance. They are always flawed and result in irreducible losses. But they are the only possible approach. In this constantly recurring task we must not hide behind state institutions and not behind influencers and legal experts. Each of us has a responsibility to make use of his or her political reason. The alternative would be devastating – it could be the end of the democratic constitutional state.