Synthesizer of Constitutional Theory, 1958–1963 77
Göttingen Superior Court was for Der Spiegel and against Schmid
and was affirmed on appeal. Schmid filed an Article 5 complaint
with the Federal Constitutional Court, which ruled in his favor.
The Nordrhein-Westfalen case of 1959 involved the legislative
effort of that state to bar publishers and editors who disseminated
materials advocating socialism, militarism, totalitarianism, or racial
discrimination.^75 The Federal Constitutional Court found that the
law violated the Article 5 right of a free press to perform its public
function – as established in the Lüth case. But it also found that the
state had effectively usurped the prerogative of censorship reserved
by Article 18 to the high court itself.^76 Free speech was not abso-
lutely protected in West Germany; it was guided by the doctrine of
“militant democracy”(streitbare Demokratie), which limited speech
deemed inimical to the “free democratic basic order”(freiheitliche-
demokratische Grundordnung).^77 The concept of a “militant democ-
racy” – or democracy that would set limits to free speech and
political action in order to protect that same order – originated with
an essay political scientist Karl Loewenstein wrote from exile: “The
most perfectly drafted and devised statutes are not worth the paper
on which they are written unless supported by the indomitable will
to survive... Democracy becomes militant.”^78 In 1931, Loewenstein
argued before the Association of Staatsrechtslehrer that the state has
a “duty of self-preservation.”^79
(^75) BVe r f G E 10: 118, 121 (1959).
(^76) Kommers, Jurisprudence, 43: “According to Art. 18, persons who abuse the
basic freedoms of speech, press, teaching, assembly association, privacy of
the mail and telecommunications, property, or the right of asylum in order
to combat the ‘free democratic basic order’ shall forfeit these rights.”
(^77) The doctrine is an interpretation of the combined significance of Articles
18 and 21, Section 2. Article 21, Section 2, states that political parties who
seek “... by reason of their aims or... behavior to endanger the existence
of the Federal Republic of Germany shall be unconstitutional.” For the
scholarly discussion, see Jürgen Becker, “Die Wehrhafte Demokratie des
Grundgesetzes,“ in Handbuch des Staatsrechts des Bundesrepublik Deutschland,
vol.VII: Normativität und Schutz der Verfassung-Internationale
Beziehungen (Heidelberg: C.F. Müller,1992), 309–59; Hans-Jürgen Papier,
Wolfgang Durner, “Streitbare Demokratie,” Archiv des Öffentlichen Rechts
128 (2003), 340–71.
(^78) Karl Loewenstein, “Militant Democracy and Fundamental Rights, II,”
American Political Science Review 31:4 (August 1937 ), 638–58.
(^79) A 1941 essay by Karl Mannheim is generally regarded as the source of the
German translation of the concept “streitbare Demokratie.” See Mannheim,
Diagnosis of Our Time (New York: Oxford University Press, 1944).