Debate on AfD ban | What is unconstitutional?

It has been known for just over a week that the Federal Office for the Protection of the Constitution has classified the Alternative for Germany (AfD) as a "confirmed right-wing extremist endeavor." With this awkward formulation in official German, the domestic intelligence agency wants to convey that it considers the AfD to be unconstitutional.

The details of how the Federal Office for the Protection of the Constitution arrived at its assessment remain unclear to the public. Although the party's classification is based on an 1,100-page report, the agency has not published it. Thanks to the platform "Ask the State," a 17-page excerpt with 37 pieces of evidence demonstrating the AfD's unconstitutionality has now been published.

In its press release regarding the party's classification, the Federal Office for the Protection of the Constitution (BfV) itself primarily argues that it violates the principle of human dignity. The AfD represents an "ethnic-based understanding of the people" that is incompatible with the free and democratic basic order. The party seeks to exclude "certain population groups" and subject them to "unconstitutional unequal treatment," thereby assigning them a "legally devalued status." These additions are crucial, because those who merely cultivate a nationalist worldview without racially devaluing others are not violating the constitution.

What the Constitutional Court considers unconstitutional

To understand what is unconstitutional in Germany and to draw conclusions about the prospects of success of an AfD ban, it is worthwhile to look at German legal history. The Socialist Reich Party (SRP) was banned in 1952, and the KPD (Communist Party of Germany) in 1956. In 1994, the Federal Constitutional Court refused to rule on a ban on the neo-Nazi Freedom German Workers' Party (FAP). It doubted whether the neo-Nazi group was even a party. Proceedings to ban the NPD failed in 2003 and 2017. However, from the various rulings, a body of jurisprudence can be derived that outlines what the highest German court considers unconstitutional.

In its decision to ban the Social Democratic Party (SRP), the Federal Constitutional Court defined what constitutes the free democratic basic order. First and foremost, the court cites "respect for human rights as concretized in the Basic Law." This is followed by a list: "the individual's right to life and free development, popular sovereignty, the separation of powers, the accountability of government, the legality of administration, the independence of the courts, the multi-party principle, and equal opportunities for all political parties, including the right to constitutionally form and exercise an opposition." Anyone who rejects these principles or agitates against them is unconstitutional. The Social Democratic Party (SRP) was banned.

The KPD ban proceedings

In the KPD ban proceedings, which dragged on for five years, the Federal Constitutional Court added a further criterion. It determined that only a party with an "actively militant, aggressive stance toward the existing order" was worthy of banning. Mere expressions of opinion were not sufficient. Instead, a party had to "systematically impair the functioning of this order" and "desire to eliminate this order itself." The Federal Constitutional Court attested to the KPD's desire to do so and banned it.

In the unsuccessful NPD ban proceedings in 2003 and 2017, the constitutional court judges provided two additional criteria. In the first case, they criticized the NPD's "lack of distance from the state": Too many undercover agents from the Federal Office for the Protection of the Constitution were active in the party. They exerted excessive influence on the party's decision-making process. In the most recent NPD ban proceedings, the Federal Constitutional Court made another criterion the decisive yardstick: "potential." This refers to the party's strength. The court found that while the NPD was opposed to the constitution, it lacked the strength to implement its goals. In terms of substance, the court determined the NPD's anti-constitutional nature based on its essential affinity with National Socialism, its rejection of the principle of democracy, and human dignity. The judges declared that the NPD strives for a "national community."

The core accusation of the Federal Office for the Protection of the Constitution against the AfD

Violation of human dignity is also the core accusation leveled against the AfD by the Federal Office for the Protection of the Constitution. The evidence published by "Ask the State" contains 16 pages of statements from AfD politicians and organizations that, according to the agency, demonstrate that the party violates human dignity with its concept of "people," its generally xenophobic publications, and its specifically anti-Islamic positions.

"Violation of human dignity is the core accusation of the Federal Office for the Protection of the Constitution against the AfD."

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The excerpt from the report also lists three examples of violations of the principle of democracy. In its press release, the Federal Office for the Protection of the Constitution completely refrains from mentioning where the AfD violates the principle of democracy. Last year, the Higher Administrative Court of North Rhine-Westphalia criticized the fact that there was less evidence of efforts to violate the principle of democracy than the Federal Office for the Protection of the Constitution suggested.

The Münster court had to decide whether to classify the AfD as a "suspected case." The court ruled in favor of the domestic intelligence agency. Referring to a chat group of Bavarian AfD politicians, the court stated that it can be assumed that statements particularly directed against the principle of democracy are not made in public. It is therefore possible that the Federal Office for the Protection of the Constitution currently has more evidence in this regard, but is not publishing it in order to conceal its involvement in the AfD's communications.

It's also striking that the Federal Office for the Protection of the Constitution's publications lack any reference to any affinity between the AfD and National Socialism. Party celebrities, most notably Björn Höcke with his SA slogan "Everything for Germany," repeatedly allude to the "Third Reich." They do so in public. Why the Federal Office for the Protection of the Constitution hasn't made this public is unknown. Just like the majority of the current report. However, in order to assess its potential contribution to a ban on the AfD, it would have to be made public.