Synthesizer of Constitutional Theory, 1958–1963 73
handed down by the Federal Constitutional Court. The cumulative
impact of these decisions was to alter Habermas’s view of the Court
and with it his understanding of the potential of basic rights juris-
prudence. Habermas’s lifelong project of rebuilding the normative
foundations of Critical Theory began with Structural Transformation.
Changes in the high court’s jurisprudence are a hidden source of
this major development in the history of Critical Theory.^62
Habermas confirmed in an interview that law professor Helmut
Ridder’s writing on an “objective right to press freedom” was an
important influence on his thinking at that time.^63 This was con-
sistent with what he had acknowledged over forty years earlier in a
footnote to Transformation:
Pushing the interpretation of the social function of the freedom
of private opinion to its logical conclusion, Ridder arrived at the
formulation of a “freedom of public opinion” [Meinungsfreiheit]
aimed at providing citizens with the equal opportunity to par-
ticipate in the process of public communication to begin with....
Equal access to the public sphere is provided to all other private
people only through the state’s guarantee of active interference to
this end; a mere guarantee that the state will refrain from intru-
sion is no longer sufficient for this purpose. In the same sense we
can interpret the jurisprudence of the Bundesverfassungsgericht espe-
cially the Lüth/Harlan judgment (1958), the Nordrhein-Westfalen
press judgment (1959), the Schmid/Spiegel judgment (1961), and the
television decision of 1961.^64In particular, the Lüth case is regarded by legal historians not only
as a watershed for the jurisprudence of fundamental rights but also
as a turning point in the evolution of a liberal political culture in the
Federal Republic.^65 Indeed, the decision generally is regarded today
as a landmark effort free speech case. The other three cases are also
(^62) The change is evident in a comparison of “On the Concept of Political
Participation” (1958), on the one hand, with Transformation (1961) and
“Natural Law and Revolution”(1963), on the other. Despite a preponderance
of continuities with Student und Politik, a quiet revolution in Habermas’s
thought occurred in Transformation.
(^63) Author’s private correspondence with Habermas, June 7, 2005.
(^64) Habermas, Strukturwandel, 334; Transformation, 228.
(^65) A comprehensive and enlightening discussion is in Thomas Henne, ed., Das
Lüth-Urteil aus (rechts-)historischer Sicht: die Konflikte um Veit Harlan und die
Grundrechtsjudikatur des Bundesverfassungsgerichts (Berlin: BW V, 2005 ).