75 years of the Federal Constitutional Court: The guardian of capitalism

“The guardian of freedom” – this is how former President Andreas Voßkuhle describes the Federal Constitutional Court (BVerfG) in a special ZDF broadcast on the court’s 75th birthday today. Shortly afterwards, the lawyer and journalist Michel Friedman explains what freedom means for people in Germany: “Every morning when I get up, I can choose the whole day – that is freedom.”

Friedman also took this to heart in his career. His favorite freedom was to order prostitutes to his hotel room and try to encourage them to consume cocaine - which he did plenty of himself. Today he appears on state television to defend the important role of the Constitutional Court and the Basic Law before German society.

However, this choice of personnel for the appearance should not distract from dealing with the history and role of the Federal Constitutional Court. The court has repeatedly made important decisions that have mostly limited the freedoms that people in Germany have fought for.

One of the most famous rulings in history comes from 1956, when the court banned the German Communist Party (KPD). After the fascist SRP in 1952, it was the second and last party to be banned. But the ban on the party was followed by many other judgments in the following years and decades that were intended to keep the struggles of the German working class small.

70 years ago today: When the Federal Republic banned communism

This includes, among other things, the de facto ban on political strikes. As early as 1955, the Federal Labor Court ruled that political strikes were prohibited. The background was the DGB unions' call for strikes against the planned Works Constitution Act in 1952. The Federal Constitutional Court never answered this question individually, but indirectly confirmed the basis of this case law in numerous judgments on freedom of association and set the constitutional framework.

But collective bargaining is also severely restricted by German law. The Collective Bargaining Unity Act (TEG) of 2015 regulates that only the collective agreement of the union with the largest number of members applies in a company. The BVerfG declared it constitutional on July 11, 2017. As a result, unions outside of the established and social democratic DGB unions are kept small.

For civil servants, the possibility of taking industrial action is even smaller. The Federal Administrative Court ruled in 2014 that the ban on strikes for civil servants was a “traditional principle of the professional civil service”. On June 12, 2018, it rejected the constitutional complaints of civil servant teachers who had been disciplined for participating in strikes.

The Constitutional Court also sided with the government under Willy Brandt (SPD) in the purge of left-wing people from the public service. On January 28, 1972, the Prime Minister's Conference decided to remove so-called "enemies of the constitution" from state jobs with the resolution "Principles on the membership of civil servants in extremist organizations". Supporters of the DKP and the K groups were particularly affected by the “radical decree”.

In the following 20 years, over 3.5 million applicants were checked, around 11,000 procedures were initiated and around 1,250 rejections and 265 dismissals were issued. The BVerfG confirmed the practice as constitutional on May 22, 1975. Today this practice is becoming more common again. Most recently, the red-green Hamburg Senate decided to reintroduce the rule request; it has been in force since August 1, 2026.

After the fascist dictatorship in Germany, the new state also adopted some legislation from the Nazi era. This also included Section 175 of the Criminal Code, which criminalized homosexuality. In 1957 and 1973 the Constitutional Court decided against rejecting criminal liability.

To this day, the court has upheld further interference with physical self-determination. In 1974 there was the first parliamentary attempt to make the termination of pregnancies within the first three months unpunished with the so-called time limit solution. Previously, there had been years of struggles by women who put the demand for legal and safe abortions on the agenda and created political pressure. However, the Constitutional Court overturned the law in 1975.

My body, but whose decision? – Why self-determination is not a given today

The rights of women in the GDR were also abolished in 1990 as part of the “Unification Treaty”. In 1993, the Federal Constitutional Court also declared a new law unconstitutional, but left scope for immunity from prosecution within the first 12 weeks with mandatory consultation. To this day, however, abortions remain fundamentally illegal.

Today, reference is made again and again to individual judgments that are intended to demonstrate the progressiveness of the court. These include the Brokdorf decision of 1985, with which the court lifted a ban on large-scale demonstrations and placed freedom of assembly under the presumption of permissibility. The 1995 “Soldiers Are Murderers” decision, in which the court overturned criminal convictions, is also cited here. Sharp criticism of institutions is covered by freedom of expression as long as there is no individual insult.

In addition, there is the Hartz IV ruling from 2010, in which Karlsruhe declared the standard rate calculation to be unconstitutional and derived a basic right to a humane minimum subsistence from human dignity. Also worth mentioning is the 2017 ruling on marriage for all, with which the court obliged the legislature to open marriage to same-sex couples. In 2021 there was the climate resolution in which the Constitutional Court declared parts of the Climate Protection Act unconstitutional because the burdens of the climate crisis were being unilaterally shifted to younger generations.

However, all of these judgments came about under great social pressure: be it the anti-nuclear power plant protests in the 80s, the Monday demonstrations against the Hartz laws or the Fridays For Future movement. The verdicts also show that they were ultimately intended to calm social and political struggles and also to steer political decisions in a direction that could serve the competitiveness of the German state.

On the whole, it is clear that the Constitutional Court ensures, above all, that everything stays as it is. The legal framework should be kept narrow and not leave too much room for social progress - unless it proves to be useful for the capitalist system.

Today the German political elite is celebrating the anniversary of the Constitutional Court in Karlsruhe: Federal President Frank-Walter Steinmeier, Federal Chancellor Friedrich Merz, Bundestag President Julia Klöckner and the rest of the government team have appeared. “Let us protect our Constitutional Court from possible attacks by those who despise the rule of law,” emphasized Steinmeier in his speech in the town hall.

He goes on to explain: “Many people are worried about the rise of forces on the political fringes that are discrediting and questioning both – democracy and the rule of law – as ‘the system’.” So while he equates the fascist upswing with the demand for social progress and the overcoming of the exploitative capitalist system, he calls for greater protection of the Basic Law and its institutions.

Meanwhile, Michel Friedman explains on ZDF how peace-loving this law and its institutions are: "The dictator sends his soldiers, sends his murderers to have peace. Democracy can only do it through conversation." And he emphasizes: “Democracy wants people who ask questions.” But questioning how democratic this system actually is, how much we can really make free decisions, or even criticizing “those up there” is going too far for him: “When we hear every day: Democracy is not good, freedom doesn’t exist, in reality there are only those up there, people resign.”

Above all, this shows that this political elite is very far removed from the reality of life of the people in Germany, who feel every day that there is a big difference between us and “those up there”. Even the “freedom” to choose every day that Friedman advocated is not the reality of the majority of people in this country. Instead, the path to wage work is precisely pre-programmed.

In addition, in the course of the current war preparations, the living conditions of the working class are becoming increasingly worse, for example due to a lack of wage increases, the weakening of the 40-hour week or the dismantling of the welfare state.

And the supposed freedom to express criticism of the German state's course is also being increasingly criminalized. This has become particularly drastic in recent months and years in the repression against Palestinian solidarity and anti-militarist protests and, most recently, the school strike movement. The German state then likes to send its “soldiers” there “to have peace and quiet” and bludgeon demonstrators, arrest them and subject them to criminal proceedings.

BVerfG: Weapons exports cannot be challenged in court

But there are also political forces that firmly hold on to the belief that “the Basic Law does not stand in the way of socialism.” This is what the Jacobin magazine writes, for example, on the 75th anniversary of the German constitution. However, if you look at the real interpretation of the Basic Law and the functioning of the Federal Constitutional Court, it should become clear that this institution is, above all, the guardian of capitalism in Germany.

The formulations in the Basic Law certainly reflect the political balance of power after the Second World War, in which the socialist camp led by the Soviet Union was a real power. And yes, the Basic Law allows, for example, that “land, natural resources and means of production […] can be transferred to common property or other forms of public economy for the purpose of socialization through a law that regulates the type and extent of compensation.”

But reality shows that, for example, expropriations only take place when a company like RWE needs land for open-cast brown coal mining or when motorways are to be built. Because of this, ordinary people are deprived of their homes. When it comes to the expropriation of real estate companies, however, the political landscape is at odds - even though it is ultimately just about buying back apartments that were previously sold off. However, even a few nationalized apartments will not change the ownership structure - even if the courts allow this.

Anyone who wants to raise the question of property will not win it in Karlsruhe, but only where every freedom has previously been fought for: in the political struggle. And 75 years after its founding, the Federal Constitutional Court will continue to be a tool for promoting social progress and taking action against those who are fighting for a real revolution in this system.