The Making of a ‘58er 35
erected. Where the Weimar constitution was seen as a “document
without a decision” in Schmitt’s terms, the Basic Law embodied a
decision – in favor of democracy. Militancy meant setting limits,
deciding what was inside and outside. Inside the gates was the “free
democratic basic order” (freiheitliche demokratische Grundordnung –
fdgo hereafter) – a phrase that appears numerous times in articles of
the constitution but is nowhere defined.
In accordance with this philosophy, Article 21, Section 2 of the
constitution reads: “Parties which by reason of their aims or the
behavior of their adherents, seek to impair or abolish the free demo-
cratic basic order or endanger the existence of the Federal Republic
of Germany shall be unconstitutional.”^28 In 1951, Chancellor
Adenauer initiated actions under Article 21 against both the neo-
Nazi Socialist Reich Party (SRP) and the Communist Party (KPD).
The Court deemed unconstitutional the SRP in 1952 and the KPD
in 1956. In both cases, the party’s property was confiscated, and
the party and all its surrogate organizations – current and future –
were dissolved. The judges of the Federal Constitutional Court
expressed an admirable concern that the law might be abused by the
government to eliminate “troublesome” opposition parties. Thus
they reasoned that the Court “... is justified in eliminating them
from the political scene, if, but only if, they seek to topple supreme
fundamental values of the fdgo embodied in the Basic Law.”^29
In April 1957, Adenauer’s government publicly declared its
willingness to station tactical nuclear weapons on German soil.
In response, eighteen prominent German scientists signed the
Göttingen Manifesto warning about the dangers inherent in nuclear
war. In September, Adenauer’s government rebuffed the plan of
Polish Foreign Minister Rapacki for a nuclear-free central Europe^30
and went on to defeat the Social Democrats later that month for
the second time in a decade. The CDU expanded its proportion
of the vote from 45.2 percent in 1953 to 50.2 percent and gained
an absolute majority in the Parliament for the first time.^31 Despite
his advanced age, Konrad Adenauer came to seem unbeatable. The
(^28) Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of
Germany (Durham, NC: Duke University Press, 1989 ), App. A, 509.
(^29) Cited in Kommers, Jurisprudence, 221. The phrase “streitbare Demokratie”
first appears in this case, BVerfGE 5, 85.
(^30) Nick Thomas, Dissent and Democracy: Protest Movements in West Germany
(London: Berg, 2003 ), 34.
(^31) The seats were apportioned 270 for the CDU and 169 for the SPD.