A reply to Sujit Choudhry’s ‘Resisting democratic backsliding’: Weimar legacy and self-enforcing constitutions in post-WWII left-wing constitutional theory

Abstract:As claimed by Sujit Choudhry, ‘historical examples have re-emerged as important elements not only of academic analysis, but also of constitutional practice’ worried by the threat of democratic backsliding. Left-wing constitutionalists inspired by the Frankfurt School have left us a theory of constitutional stability drawn on by the Weimar experience. Following Choudhry’s call for more historical research on the subject, I will first summarise the critiques of the Weimar constitution developed by these authors and their ensuing proposals for its reformation. Secondly, I will describe the efforts made after 1945 to translate these suggestions into keys for German democratic renaissance. Apart from their impact on the Basic Law, I will focus on the much lesser known attempt to design a ‘better Weimar’ in the Soviet Zone of Occupation from 1945 to 1947. I will show how Weimar left-wing constitutionalism influenced East Berlin constitutional debate and the reactions of the West German constitutionalists. My final goal is to enrich our understanding of the issue raised by Choudhry of placing the political parties at the very core of the constitution instead of running away from political power.