Germany is leading the way with a debate on its constitution, the Basic Law. After seven decades in operation, politicians of all parties want to remove racist elements from it. Which is somewhat surprising given there are none.
After the atrocities, the genocide and the systematic human rights violations committed under National Socialism, West Germany gave itself one of the world’s best constitutions. Drafted and passed in 1949, the Basic Law could be summarised in two words: “Never again.”
Everything in the Basic Law is aimed at preventing another Hitler, another dictatorship, another state-led assault on fundamental freedoms. There are so many checks and balances built into the constitutional structure of the Federal Republic, it is almost impossible to govern the country.
There is a Constitutional Court, which watches over the protection of liberal order and is ready to prevent even the slightest assault on it. The catalogue of the Basic Law’s human rights stands at the beginning of the document. A separate article prevents any amendments to the substance of the protected rights.
To round it all off, the Basic Law starts in wonderfully simple yet powerful prose: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
After the horrors of the Holocaust, World War II and the complete collapse of civilisation in Germany, the Basic Law was the appropriate response. It was the country’s re-entry ticket into the civilised world.
Over time, the Germans developed a mix of gratitude for and pride in the Basic Law. In the 1970s, some suggested that the country should find its identity the Basic Law, rather than in old concepts of nationhood. Intellectuals like Dolf Sternberger and Jürgen Habermas made the case for this idea of Verfassungspatriotismus (‘constitutional patriotism’).
With all this history, it may appear somewhat bizarre that anyone could now deem it necessary to purge the Basic Law of racist elements. But this is 2020, and things are not that simple anymore.
As a result of the global debate on racism, politicians of the Greens, the liberal FDP and the post-communist Left Party have called for a change to the Basic Law’s provisions on equality before the law. It reads:
(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.
(3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions. No person shall be disfavoured because of disability.
If you do not detect the racism in this constitutional provision, let’s point it out. It is in the word ‘race’.
As the politicians supporting a constitutional change argue, there are no races, just humans. Consequently, they say, there could be no discrimination based on race since race does not exist as a category. The only thing that does exist is racist discrimination, and hence they suggest the replacement of the word ‘race’ with something else.
The Greens wants to see a change to ‘racist grounds’, the Liberals suggest ‘ethnic origins’ while the Left prefers ‘ethnic, social territorial origins’. Through her spokesperson, chancellor Angela Merkel has indicated she is open to such changes, while her Minister of Justice Christine Lambrecht also supported the proposals. With such support from across the political spectrum, it is probably just a matter of time until a constitutional amendment is made.
However, despite such ready constitutional activism, it is appropriate to question whether anything would be achieved by such changes. Discriminations, where they exist, would not disappear simply because we exchange the labels attached to them.
By mentioning the word ‘race’, the Basic Law does not accept race theory, either. It was the dominant purpose of the Basic Law to move away from Nazi ideology. In 1935, the Nazis had spelt out their pseudo-scientific race views in the Nuremberg Race Laws. That the Basic Law uses the term ‘race’ is not an acknowledgement that there is a foundation to race theory but quite the opposite, namely that no pseudo-scientific race talk can ever be the basis of discrimination.
A change of the Basic Law’s wording would be symbolic. There would be no practical difference because the constitution is anti-racist in nature.
But a change would be ahistorical. And it would also set a bad precedent for other documents, not just in Germany.
Take the Charter of the United Nations, for example. It was drafted in 1941, and it shows. It speaks of ‘mankind’ where today we would probably use the word ‘humankind’. It emphasises ‘in the equal rights of men and women’ whereas today we would probably use a wider gender definition. And, of course, it mentions ‘race’ as the Basic Law does (Article 1: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”).
Or take the Universal Declaration of Human Rights, proclaimed in 1948. It mentions “a spirit of brotherhood”, which by today’s standards would be sexist. It also speaks of “men and women” with a diverse gender option missing. It also cites ‘race’ as a prohibited ground of discrimination as well as ‘colour’.
The wording of the UN Charter, the Universal Declaration of Human Rights and the Basic Law may appear antiquated. Yet no-one in their right mind would read these historic documents as anything other than what they are: powerful declarations of general equality, human rights and anti-totalitarianism.
In a world in which not even Fawlty Towers is secure from well-meaning censorship (“Don’t mention the War”), how long it will take until we will replace our most fundamental legal declarations?
When legal anti-racism becomes seen as racist, something has gone horribly wrong.