Civil Disobedience and Modernity, 1978–1987 163
weapons of mass extermination was comparable to slavery and from
his seat on the Federal Constitutional Court endorsed a constitu-
tional amendment banning nuclear weapons.^125 Habermas may not
have wanted to squander moral resources on hyperbolic arguments
or risk comparisons with the kind of moral argumentation from
“traditional values” for which he faulted German conservatives.
To the question, how could basic norms (Grundnormen) be justi-
fied, Habermas excluded the “... today-popular return to a mate-
rial value order.”^126 In either case, adding new constitutional rights
would have added power to the conservative judges whose job it
would be to interpret and enforce them. Moral progress was less
likely to come by fiat from Karlsruhe than from protest in Bonn,
he reasoned. Democracy was not just about the content of decisions
but also about how they were produced. Habermas feared the coun-
termajoritarian power of judges and insisted that legislation remain
the via regia to democratic decision-making.
The argument for civil disobedience most compelling to
Habermas was that decisions concerning German security policy
possessed a distinct moral gravity that demanded a higher degree
of legitimation than a simple majority vote of the Bundestag.^127
Habermas proffered the argument that representative democracy
must at times be supplemented or superseded by a plebiscitary ele-
ment. Habermas pointed out that the potential irreversibility of
security decisions raised the threshold for legitimating them to
this higher democratic level: “In the face of a provocation like the
uncontrolled arms race, the citizens must intervene directly in their
role as sovereign and give notice that corrections or revisions are
overdue.”^128 Despite its potential countermajoritarian implications,
Habermas justified the “plebiscitary pressure of civil disobedience”
on the ground that it might be the “last chance” to correct errors.
If the
... representative constitution fails before demands which concern
all, then the people, in the form of its citizens... must be allowed
to assume the originary rights of the sovereign. The democratic
(^125) Habermas, “Testfall,” 48; “Recht und Gewalt ,” 114–7. Simon was elected
by the SPD and served from 1970–87.
(^126) Ibid., 38. See Chapters 1 , 2 , and 5 for further discussion of value
jurisprudence.
(^127) Ibid., 48–50.
(^128) Habermas, “Recht und Gewalt,” 112.