Recasting Democratic Theory, 1984–1996 187
146 stated that on unification, the Basic Law would cease to exist,
and a new constitution would be adopted “by the free decision of
the German people.”^63 Once reunification became a real possibility,
though, many German lawyers argued that Article 23 – an article
designed originally for accession of areas still under Allied occu-
pation in 1949 such as the Saar Region – was the more efficient
vehicle: Under Article 23, a new region simply would come under
the jurisdiction of the Basic Law, thus obviating the need to convene
a time-consuming, constitution-giving assembly.^64
Habermas sided with the jurists led by Helmut Simon who advo-
cated applying the route outlined in Article 146. Josef Isensee was
the leader of an opposing group of 100 constitutional law professors
who defended reunification through Article 23. The main argu-
ments of the conservatives were that one should not tamper with
successful institutions such as the Basic Law because it deserved
the lion’s share of credit for the stability of West German democ-
racy. They also argued that the GDR constitutions of 1969 and 1974
hardly deserved emulation because the guarantees of civil and polit-
ical rights in those constitutions were contradicted by the state’s
totalitarian practices.^65 Sozialsstaat it may have been, but Rechstsstaat
never.
The left argued, by contrast, that that the GDR’s constitutional
history was “not a blank page” and that the Basic Law was antiquated
and in need of updating. New explicit state-goals such as ecologi-
cal security could be added. A metaphor was commonly employed
to underscore their point: that of building a common house. “When
a couple is in love,” wrote one GDR activist, “they should build a
new house together. One partner should not move into the other’s
hou se.”^66 Habermas too used a version of the metaphor: “Unification
hasn’t [yet] been understood as a normatively willed act of the citi-
zens of both states, who... decided upon a common civil union.”^67
(^63) Basic Law, Article 23.
(^64) Article 23 had been used for the accession of the Saarland in 1957.
(^65) Robert Leicht, Die Zeit (February 3, 1990). Reprinted in Bernd Güggenberger
and Tine Stein, eds. Die Verfassungsdiskussion im Jahr der deutschen
Einheit: Analysen – Hintergründe – Materialien (München: C. Hauser, 1991).
(^66) Karl-Heinz Ladeur, “Verfassungsgebung als Katharsis: Der Entwurf des
‘Runden Tisches,’ ” and Gerd Roellecke, “Dritter Weg zum zweiten Fall.
Der Verfassungsentwurf des Runden Tisches würde zum Scheitern des
Staates führen.”
(^67) Haller, Past as Future, 44.