Constitution as Nonviolent Revolution

A conversation with Ulrich K. Preuß, who was a Fellow at the Wissenschaftskolleg in 1989/1990 and advisor to the constitutional committee of the “Round Table”

Daniel Schönpflug: You were a Fellow in 1989/1990. Can you still remember that moment on November 9, 1989 when news arrived at the Kolleg that the Berlin Wall had opened up?

Ulrich K. Preuß: The academic year had only just begun. But there was already a small circle of German and non-German Fellows who were accustomed to watching the evening news together. So on November 9 at 8 pm we gathered in front of the clubroom television and the headline news was “GDR opens its borders.” We were all completely surprised and some of us said: “The Wall is open, we have to go see that!” As a jurist I was the victim of my déformation professionelle and persuaded that there would soon be new travel options for GDR citizens – though not that very same evening. The decision had to first be implemented, applications made and processed, and all this would take some time. So I saw no reason to rush to the Wall that night. The others had already pulled on their jackets, but I climbed the stairs to my room and went to sleep. When I awoke the next morning I was disabused of my notions when I saw the entire Wallotstraße blocked by East German cars, the famous “Trabbis”.

DS: How did things develop at the Kolleg in the days to follow?

UP: Our daily rhythm remained the same – meals, colloquium – but it all took place in a febrile atmosphere. Reunification was the main topic of conversation and we had to explain to the foreign Fellows what had actually happened. In those first days some of them even traveled out into the Berlin hinterland. But I satisfied myself with the evening news and continued to work on my project, which ironically was a study of Thomas Hobbes amidst the political and epistemological upheavals of his time.

DS: In December 1989 you suddenly became involved in the whole process. You were invited to join the constitutional committee of the so-called Round Table as a West German expert. For our foreign readers –just what was the Round Table?

UP: The Round Table was an institution invented in Poland. That’s where the revolution had started a number of years earlier. In the Polish context there was a pact concluded between the trade union Solidarność and the communist government to introduce desired social change but without deposing the regime. The table was round for the symbolic reason of showing that no battle lines were to be drawn. This model was a prototype for the German Round Table, which brought together government representatives and those from the citizens’ movements. The goal was to collectively frame a consensual transition.

DS: Was the Round Table’s conception of itself one of the reasons why in 1989 there occurred no “real” revolution in Germany like in 1918.

UP: No, it was just the opposite, there was a Round Table because the citizens’ movements in the GDR sought to avoid violent overthrow of the old order. One of the determining factors here was certainly the fact that their supporters were very church-based. They were of the conviction that the necessary changes should be enacted in a non-violent fashion.

DS: Is it in this sense that we can also understand the initiative for a new GDR constitution –a process with which you were directly involved – namely the Round Table not as a constituent assembly like that of the French Revolution but as a counselor and source of ideas for the beleaguered GDR government?

UP: I would even go so far as to say that the constitution was intended as the instrument by which there would be a shift – but not an abrupt one – of the power structures in a civil and non-violent form. In contrast to the French National Assembly in 1789, the Round Table wasn’t trying for a power grab but was taking into careful consideration those forms by which, step by step, the political power relations could and should change.

DS: Weren’t you plagued with doubts in tackling such a tremendous task for a state that was already in the process of disintegrating?

UP: At the time when we began our work, in the months after December 7, 1989, it was hardly apparent that the GDR was destined for oblivion. Clear to us, of course, was that the regime could not survive in its present form. But even Helmut Kohl, in his “Ten-Point Program” of November 28, 1989, had formulated the idea of a confederation between the two German states – GDR and Federal Republic – and not the notion of a reunified Germany. And it was still completely uncertain just how the four victorious powers of the Second World War would react – in 1989 they still shared the ultimate responsibility for “Germany as a whole”. I myself had the sense that reunification and the end of the GDR would only take place in a few years if at all.

DS: What kind of a regime would the GDR have become if the Round Table’s constitution had become operative?

UP: Of course our draft constitution had a great many similarities to West Germany’s Basic Law. Once again, more important to us than the end result was the process of drawing up a constitution not only for the GDR citizenry but with their involvement; by contrast, it was of secondary importance what a few constitutional jurists discussed with one another. Just such a process would have been a true unification, at first within the GDR itself, which could have served as the foundation for a German-German unification.

DS: What were the most important differences between your draft constitution and that of the Federal Republic?

UP: The West German constitution of 1949 was very strongly centered around the state and hence was frequently referred to as a “state constitution” – everything relating to non-state matters was regarded as part of the private sphere. According to our constitutional idea the new GDR constitution, by contrast, was devised as encompassing and reflecting the society in its entirety. One formulation of particular importance to me can be found in the draft constitution’s catalogue of fundamental rights where it states: “Every person owes each other the recognition as an equal.” In the classic conception of the constitution this is a clear intervention into an area where the state has absolutely no business – the private sphere. Our draft constitution demanded coexistence, solidarity, a social ethos – it was designed to be the constitution for a Gesamtpolitikum, as it were, encompassing both state and society.

DS: When did it become clear to you that all your efforts to create a new GDR constitution had been in vain?

UP: It finally became clear after the election for the Volkskammer on 18 March 1990. A member of our Round Table, Gerd Poppe, who was also a deputy in the Volkskammer, had introduced a motion to bring the new constitution into operation through a referendum. That too was groundbreaking since normally the constitution itself would have been the prerequisite for holding a referendum. But Poppe’s motion was rejected. Then on 5 April the new government under Lothar de Maizière was sworn in – despite contentious discussion – on the basis of the old GDR constitution! The majority of the members of the newly elected Volkskammer had one completely creditable reason for rejecting our draft: They didn’t want a new constitution because it might have appeared as if we were seeking to perpetuate the GDR. Apart from all that, the situation itself became a dramatic one in the spring 1990. The GDR was suffering from a massive exodus of people. Many at the time were saying: “If the Deutschmark doesn’t come to us then we’ll go to the Deutschmark.” Added to that was the international situation. In light of the purview exercised by the four victorious powers of World War II, it was entirely possible that the window of opportunity which emerged in 1989 and 1990 for German reunification could quickly close again. And ultimately one might have been able to have a constitution but no reunification. I accepted these reasons at the time and I accept them today. There was simply no time for the kind of discursive process which we thought ideal for the creation of our constitution – as an aphorism of the conservative German sociologist Arnold Gehlen famously put it: “Contemplation impedes action.”

DS: In retrospect did the decision against a final GDR constitution have negative consequences?

UP: The price paid for that decision is the abiding alienation between eastern and western Germany and the feeling among many East Germans that they were “taken over” by West Germans in reunification. But you can’t have everything in life – unification and simultaneously a thoughtful and collective process, which would have been a real revolution, but without any form of violence. I still grieve for this missed chance.

DS: Could this omission have been later rectified? For instance Dieter Grimm has suggested that after reunification one might have undertaken a constitutional process along the lines of section 146 of the Basic Law.

UP: That would have been conceivable but it wouldn’t have had the same consequences, for then the drawing up of a constitution would not have led to unity but rather the unity would have led to the drawing up of a constitution. This sequence would have greatly lessened the social impact of the constitutional process. In my opinion the only thing that might have led to a permanently stable result would have been a broad, nuanced, dissonant and candid discussion that created new and common ground. For that there was only a very narrow window of opportunity. I think that by the autumn of 1990 that brief constitutional moment had elapsed.