Recasting Democratic Theory, 1984–1996 189
Germany. First, the Basic Law already had popular endorsement
because every national election since 1949 could be considered a rat-
ification of the constitution and its legitimacy. Second, the March
1990 elections were evidence that the majority of East Germans had
supported it. Third, it was an excellent constitution by any conceiv-
able standard. One scholar has described this third position as an
appeal to “hypothetical popular sovereignty”; that is, the Basic Law
contained those principles that free and rational individuals would
choose had they had the opportunity.^73 T he opposi ng side, i nclud i ng
Habermas, argued that neither the March 1990 elections in the East
nor the four decades of federal elections in the West had addressed
constitutional issues explicitly. Without a founding moment, a con-
stitutional tradition could not take root. In the end, the reformers
lost. Instead of a broad constitutional convention, a commission,
comprised of thirty-two members of Parliament, divided along
party lines, was established to engage public proposals; no major
public forum took place.^74
Habermas’s disappointment with the outcome of the Round
Table’s quest was clearly an important factor shaping the argument
of BFN although he does not acknowledge this. When asked in an
interview if he thought “traces” of disappointment were evident in
the work, he said that he didn’t know.^75 Nevertheless, the imprint
of history on Habermas’s theory could not be clearer than in the
following example: Disputes over the shape of the constitution in a
democracy
... [concern] all participants, and it must be conducted not only
as an esoteric discourse among experts apart from the political
arena.... Legal experts participate in this contest of interpretations
in a privileged way, but they cannot use their professional authority
to impose one view of the constitution on the rest of us. The public
must itself find such a view convincing.^76
In a concurrent interview from late 1990, he wrote angrily of the
“near hysterical fear of a forum on the constitution itself” and
(^73) Simone Chambers, “Democracy, Popular Sovereignty, and Constitutional
Legitimacy,” Constellations 11:2 ( June 2004 ), 167 (emphasis added).
(^74) Ibid.
(^75) Author’s private correspondence with Habermas, June 7, 2005.
(^76) Habermas, BFN, 395.