20 Habermas: An intellectual biography
can be highly repressive. A jurisprudence interpreting the Bonn
Republic as a “militant democracy” (streitbare Demokratie) devel-
oped in the 1950s. On this basis, a neo-Nazi party (Sozialistische
Reichspartei Deutschlands – SRP) and the Communist Party
(Kommunistische Partei Deutschlands – KPD) were declared to be
enemies of the basic order and banned in 1952 and 1956, respectively.
This jurisprudence also was revived during the state’s confronta-
tion in the 1970s with left-wing domestic terrorism.^73 Habermas’s
writings contain a critique of postwar West Germany: The shadow
side of Germany’s success in dethroning German statism in favor
of a robust liberal constitutionalism is that too much power has
been concentrated within the Federal Constitutional Court. By
highlighting Habermas’s engagement with decisions of the Federal
Constitutional Court over four decades, we can see the extent to
which Habermas has always been a democrat first and a liberal
second.^74
The Bonn Republic sometimes has been mischievously called
the “Karlsruhe Republic.” If a party failed to achieve its objective by
parliamentary majority, the party’s next step inevitably was to make
the “trip to Karlsruhe” – the seat of the Federal Constitutional
Court – to challenge the law’s constitutionality.^75 Since the 1970s,
a marked “judicialization of politics” has been noted by observ-
ers of German politics from across the political spectrum, with
democracy “... circumscribed by and in favor of judicial power.”^76
At different times and for different reasons, both left and right com-
plained that the political process was truncated by the hegemony of
the constitution.^77
For leftists, both the 1956 ban on the Communist Party and the
rejection of plebiscites opposing atomic armament in the late 1950s
rankled. For rightists, a number of free speech cases in the 1960s(^73) See Jeremy Varon, Bringing the War Home: The Weather Underground, the
Red Army Faction, and Revolutionary Violence in the Sixties and Seventies
(Berkeley: University of California Press, 2004 ), 254–89.
(^74) See, for example, Charles Larmore, The Morals of Modernity (New
York: Cambridge University Press, 1999 ).
(^75) Philip Blair, “Law and Politics in Germany,” Political Studies 26:3 (1978),
348– 62.
(^76) See Grote ( 1999 ), cited in Tamanaha, Rule of Law, 110; Erhard Denninger,
“Judicial Review Revisited: The German Experience,” Tulane Law Review
59 (1984–5), 1013–31.
(^77) Kommers, “German Constitutionalism,” 849; Denninger, “Judicial Review,”
1023– 6.