68 Habermas: An intellectual biography
and executive actions. He also criticized the fact that the Federal
Constitutional Court had arrogated legislative functions to itself
when it banned the Socialist Reich Party in 1952 and the Communist
Party in 1956.^46 Abendroth also attacked the Court’s proceedings
against the Communist Party, arguing that by removing an essen-
tial right of resistance (Widerstandsrecht), the Court failed to learn
the lessons of Weimar: “Democracy depends on the readiness of
the democratic forces of the nation to protect it.”^47 Reflecting on
its powers of judicial review, which were unprecedented in German
history, Abendroth intoned: “It is not higher-ranking than the Basic
Law, rather it is subordinate to it.”^48
From the experience with the plebiscite, and with the Court’s
ban on the Communist Party, Habermas appears to have formed a
view of the highest court as an antidemocratic and antisocialist insti-
tution, consistent with both Abendroth’s and Drath’s assessment of
it. The Federal Constitutional Court’s emphasis on basic rights,
Habermas believed, was neither an adequate substitute for the miss-
ing second half of the Weimar constitution (which had guaranteed
social rights) nor sufficient compensation for the Court’s role in
effectively negating popular sovereignty.^49 The West German “eco-
nomic miracle” had produced both a paternalistic state and an ethos
of consumption, Habermas believed. Each exacerbated the weak-
nesses of the other. As he put it in 1958:
If one compares the superficiality of the opportunities for political
self-determination with the personal protection and personal free-
dom which are secured to individuals by the liberal basic rights, one
gets the impression that citizens of the so-called consumer society
are also viewed juristically as customers.... Outfitted with these
rights, and as good as excluded from real political power (Mitbestim-
mung), the people become a mere object of care (Fürsorge).^50
Having concluded that the judiciary and administrative bureaucracy
were too conservative to promote social reform, Habermas gravi-
tated toward intellectual positions that helped him to buttress his(^46) Ibid.
(^47) Abendroth, “Bundesverfassung und Widerstandsrecht,” in Antagonistische
Gesellschaft und Politische Demokratie: Aufsätze zur Politische Soziologie
(Neuwied: Luchterhand 1967, originally 1955 ), 124–7.
(^48) Ibid., 123.
(^49) Habermas, Student und Politik, 36.
(^50) Ibid., 39.