Towards an Epistocracy of Judges. Militant Democracy and Constitutionalism in Germany after World War II

Young German democracy understood itself after the end of World War II decidedly as “militant or defensive democracy”. As the young democracy had to assert itself against two threats, the stabilization of the new political order was the prior task: on the one hand against the Nazi-Past and the old Nazis in its own ranks and against the new communist threat in the divided country on the other. Surprisingly, the constitutional provisions to strike democracy’s enemies have never been applied (as the forfeit of basic laws) or have shown only little effects (as the banning of political parties). In my talk, I will argue that the Federal Constitutional Court – which itself was created by the German Framers in order to secure the young constitutional order – developed gradually a different concept of political stabilization and transformation. The Court linked the concept of political integration with the idea of constitutional values. According to the Court, the rule of law should imply the rule of the good law. This turned out to be a successful strategy to reinforce the legitimacy of the new democratic order and to raise power and political importance of the Federal Constitutional Court at the same time. My talk will examine the rise of German constitutionalism after World War II from the perspective of epistemic democracy. I will develop an institutionalist approach which clarifies the interplay between rule of law, non-majoritarian-institutions and militant democracy in German constitutionalism. I will argue that the assumption of an order of constitutional values gave rise to the Federal Constitutional Court as a powerful non-majoritarian institution. On the other side of the coin is a deep-rooted distrust in procedural democracy. The language of constitutional values shapes since today an epistocratic strain in Germany’s political system.