Synthesizer of Constitutional Theory, 1958–1963 79
Hennis, to work with him. In major decisions of which Habermas
took note – particularly the 1952 and 1956 decisions to ban the
Communist Party (KPD) and Socialist Reich Party (SRP) and the
1958 Lüth judgment – Smend’s integrative theory of the consti-
tution supplied the essential rationale. Furthermore, Habermas
learned from, and cited, several of Smend’s students who went on
to prominent careers in political science and law, including Martin
Drath and Gerhard Leibholz, both of whom sat on the Federal
Constitutional Court, and Horst Ehmke, Konrad Hesse, and
Wilhelm Hennis.^84
The decisions to ban the political parties, made in the name of
“militant democracy,” rested on a combination of natural law rea-
soning and Smend’s legal theories; the two influences are very hard
to disentangle. For Smend, the legitimating power of law derived
from natural law, not from democratically generated law.^85 In the
early 1950s, the Federal Constitutional Court described the free,
democratic basic order as a “value order” or “value system,”^86 a
formulation that revealed clearly the influence of Smend’s central
Weimar-era text, Constitution and Constitutional Law (1928). There,
Smend described the basic rights catalogue of the Weimar consti-
tution as a “value system” rather than a programmatic guide for
legislators.^87 In its 1952 ban on the SRP, the Court followed Smend
by using the language of “basic values” (Grundwerte) instead of basic
rights (Grundrechte).^88 Similarly, in its ruling banning the KPD in
1956, the Court described the “free democratic order” as a system
of “absolute values” that must be defended: The Basic Law would be
“no value-neutral order” but rather a “value-bound order.”^89 Smend’s
doctrine of integration thereby dominated the Court in the 1950s
through shared constitutional values:
In a series of decisions, the federal criminal and civil court explicitly
used natural law as a gauge. The federal constitutional court took(^84) Leibholz was on the Federal Constitutional Court from 1951–71; he had no
party affiliation. Hesse was elected once by the SPD and once by the FDP
and served from 1975–87.
(^85) See Smend, Verfassung und Verfassungrecht, 210; and Ilse Staff, “Das
Lüth-Urteil. Zur demokratietheoretischen Problematik materialer
Grundrechtstheorie,” in Henne, Lüth-Urteil, 317.
(^86) BVe r f G E 2:1, 17ff; 5:85, 134, 204–7.
(^87) Henne, “‘Von 0 auf Lüth in 6½ Jahren.’ Zu den prägenden Faktoren der
Grundsatzentscheidung,” in Henne, Lüth Urteil, 213.
(^88) Henne, “Von 0 auf Lüth,” 208.
(^89) BVe r f G E 5, 138–9.