Synthesizer of Constitutional Theory, 1958–1963 67
guide” to the English constitution for the “antidemocratic wing” of
German liberalism in the Empire. Habermas questioned whether
the three features Montesquieu considered liberal constitutional-
ism’s signature actually existed in contemporary West Germany.
The three were the separation of governmental functions, the gen-
erality of application of the legal norm, and the guarantees of basic
rights. How relevant were those liberal Rechtstaatlich ideals under
contemporary conditions of mass democracy and the social welfare
state? Habermas asked. The answer common to all his works
from the years 1958–63 was that under the new social conditions,
liberalism’s principles had “... forfeited their original meaning.” The
only important question that remained, therefore, was “whether or
not the realization of these principles” was still possible.^42 In all his
works, Habermas advanced the same answer to this question: Yes,
but only through socialist transformation.
Habermas did not intend to argue for a new equilibrium among
the executive, legislative, and judicial branches of the government in
Bonn but rather for the priority of the democratic legislative branch
over the other two. His preference for the legislator reflected a
Rousseau-influenced notion of the general will. Habermas believed
that the Basic Law had produced a lopsided state of affairs: Strong
guarantees of basic rights were juxtaposed with the weakest of
mechanisms for achieving popular sovereignty. In “Political
Participation,” Habermas asserted that the drafters of the constitu-
tion had produced a document that displayed “... mistrust of the
parliament and the bureaucracy.”^43 Here he followed Drath, who
bemoaned the “remarkable” contrast between the expansive basic
rights section of the Basic Law, on the one hand, and the lack of
trust placed in the political judgment of the populace, on the other.^44
Plebiscites and referenda were excluded from the Basic Law. “One
can say that with us,” Drath wrote, “Montesquieu’s idea of represen-
tation has defeated Rousseau’s idea of democracy.”^45 Nonetheless,
Drath argued, one could not speak of a division of powers in the
classical sense. First, the courts intervened too often in legislative
(^42) Habermas, Student und Politik, 34–5.
(^43) Ibid.
(^44) Martin Drath, “Die Gewaltenteilung im heutigen deutschen Staatsrecht,” in
Faktoren der Machtbildung, ed. A. R. Gurland (Berlin: Duncker & Humblot,
1952), 27, fn. 57.
(^45) Drath, “Die Gewaltenteilung,” 27.