The “Great Refusal” and Social Theory, 1961–1981 105
constitution, had been used to facilitate the Nazi takeover of the
German state was still fresh.^69
The statements of Horkheimer and Adorno illustrate that
they too valued the legal guarantees afforded by the Basic Law.
Horkheimer declared his “scorn” for those who considered the free
constitution (freiheitliche Verfassung) an illusion.^70 Adorno declared
that other countries might be able to have emergency laws, but
the German experience with Article 48 made that unthinkable.
This high degree of consensus on the left about the importance of
defending the German constitution is often neglected in the nar-
rative about Habermas and 1968 , which depicts him as outside the
mainstream of the movement. The defense of legality was not a
position monopolized by conservatives.
The terms in which Habermas affirmed the student movement
illustrate his own concerns with the principles of legality and the
constitution generally. Habermas was one of many signatories to
a letter to Chancellor Adenauer expressing outrage about the gov-
ernment’s raid on Der Spiegel in 1962.^71 The incident was provoked
by an article in Der Spiegel about defense policy that the govern-
ment alleged disclosed important national security secrets. In a
November 1967 lecture sketching the history of protest in West
Germany, Habermas wrote that the response to the Spiegel affair
“... is the model case of defensive mobilisation of the public in
the name of violated constitutional rights.”^72 Similarly, Habermas
viewed the state’s actions leading up to Ohnesorg’s shooting as ille-
gitimate: Student protests against the Shah of Iran’s visit were met
with “... illegal prohibitions of demonstrations, dubious confisca-
tions and problematic arrests, indefensible court proceedings, open
police terror.”^73 At a teach-in on June 5 attended by 3,000 students
and the university rector only three days after the Ohnesorg shoot-
ing, Habermas warned that there was a real “... danger that the
democratic and lawful state silently turns into a police state.”^74
(^69) See Russell Miller, John LaMont, et al., “40/68 – Germany’s 1968 and the
Law,” German Law Journal 10:3 (1969), 223–60. Available at http://www.german-
lawjournal.com/.
(^70) Horkheimer, “Gedanken zum Notstandgesetz.”
(^71) “We are disturbed Mr. President,” Krausharr, Frankfurter Schule 1:194.
(^72) Habermas, “Studentenprotest in der Bundesrepublik: Ein Vortrag im New
Yorker Goethehaus” (November 1967), in PuH, 169.
(^73) Ibid., 162.
(^74) Krausharr, Frankfurter Schule 1, 256.