"Constitutional state must oppose the enemies of the law"

The President of the Federal Constitutional Court, Stephan Harbarth, views the change in social discourse through new media with concern. "Even if they enrich our lives in some respects, they favor the spontaneous, provisional, shortening, and also the hurtful," said the 50-year-old on Wednesday evening in his speech "The rule of law in the best shape?" in front of the Übersee-Club in Hamburg.

The anonymity of the Internet promotes brutalization. The success of a contribution is often proportional to the extent of the emotionalization it causes, emphasized Harbarth, adding: "The algorithm opens up filter bubbles and echo chambers and thus creates closed world views that contribute to communicative radicalization."

If members of different chambers and bubbles then meet online or in the analogue world, the extent of the polarization and division becomes apparent. According to the President of the Constitutional Court, this does not leave the reputation of democratic institutions untouched. And yet the Basic Law offers a “stable regulatory framework for future challenges”.

Harbarth, who sat for the Union in the German Bundestag from 2009 to 2018, was appointed President of the Federal Constitutional Court two years ago. The lawyer came under criticism after a dinner on June 30, 2021 in the Federal Chancellery with the then Chancellor Angela Merkel (CDU).

All 16 constitutional judges and most of the federal ministers took part. One of the topics was the Corona policy with the so-called federal emergency brake - despite ongoing proceedings at the Federal Constitutional Court.

The Federal Constitutional Court later rejected a subsequent application for bias against Harbarth and another constitutional judge, since meetings with the federal government were no reason for the allegation of bias. The plaintiffs saw it differently.

When asked by the audience whether meetings of this kind were still up to date, Harbarth answered in front of the Übersee-Club that it was a matter of regular exchange between the constitutional bodies. He considers this to be important and necessary, because otherwise the view of the Federal Constitutional Court narrows. He considers the idea that such meetings endanger the independence and impartiality of the Federal Constitutional Court to be "absurd". The court does not take orders.

Harbarth also pointed out that "the Basic Law binds all state power to the requirements of the constitution". It is not the task of the Federal Constitutional Court to pour political decisions into a constitutional text. Instead, the court stakes out the outer framework that politics must not cross, otherwise it acts unconstitutionally.

In his speech, the lawyer also explained that the use of civil liberties could be apt to delegitimize the constitutional order. He emphasized: "The well-fortified constitutional state must consistently oppose the enemies of law and the rule of law." The Federal Constitutional Court recently stated in its judgment on the Bavarian Constitutional Protection Act that the state has the task of securing the free democratic basic order. A restriction of freedom rights could therefore be legitimate.

On April 26 of this year, the court ruled that the far-reaching powers of the Bavarian Office for the Protection of the Constitution infringe fundamental rights (Az. 1 BvR 1619/17). The judges had thus upheld a lawsuit filed by three members of the Association of People Persecuted by the Nazi Regime – Association of Anti-Fascists (VVN-BdA).

Since it was founded in 1922, the Übersee-Club Hamburg has, according to its own statements, "offered important personalities the freedom to give their thoughts ample space as to how the world will develop in the future". This year, the "Forum for Discussions between Business, Politics, Culture and Science" is celebrating its 100th anniversary and recently invited speakers such as Federal Chancellor Olaf Scholz (SPD) and the President of the German Bundestag, Bärbel Bas, to give a lecture.

Rainer Dulger (October 4th), President of the Confederation of German Employers' Associations, and WDR Director-General Tom Buhrow (November 2nd) are expected soon, as well as Hamburg's former mayor Klaus von Dohnanyi and climate activist Luisa Neubauer for a discussion (December 12th).