ConWatch: Week 1,816
Does Germany have a constitution yet? This week: German courts tell the German state to stop sucking so hard.
From the confused view of the overstated heights of the Teutonic Imaginary, Germany has a constitution, but not the rule of law. This counterintuitive combination is how, from within the Imaginary, incongruities become congruous: You can violate fairly basic democratic principles without it being illegal, because if it were illegal, the constitution would stop you because all these European democracies have constitutions.
Right?
In the world of most of the rest of us, the opposite is true: No constitution — not even judges for its so-called constitutional court — but still the rule of law. Sorta, kinda!
1.
Once again, German courts have had to remind the German state of this pesky fact, overturning a Schengen-wide ban imposed last year on the rector of Glasgow University. Much to nobody’s surprise, someone saying things that make you uncomfortable is not the same as them saying illegal things — much less encouraging others to do illegal things.
If anyone’s doing anything illegal, it’s Germany trying to bar someone from 31 countries because it said so.
That said, German Officialdom did Ghassan Abu-Sittah a favor. Since Berlin police stormed and shut down the Palestine Conference that invited him, it’s unlikely he would have been able to speak, anyway.
So, really, the German interior ministry saved the prominent British-Palestinian surgeon the schlep, not to mention the hassle of fighting Ryanair to refund his ticket. Because EU passenger compensation rules do not apply when the cause of your travel disruption is a violation of your fundamental rights.
2.
But why stop at a single instance of undermining a foundational principle of postwar Europe when you can take out the whole thing?
Permanent border controls are a violation of Schengen Area rules, which cover most of Europe. To get around this, participating countries can tell the European Commission that their commitment to freedom of movement isn’t leaving, but just going out for a pack of cigarettes and swears it will be right back.
If you want to reintroduce border controls, and at least nine European states currently do, the trick is to just call them “temporary” and then renew and extend them until whenever a permanent state of exception mercifully liberates us all from the shackles of freedom’s tyranny.
Given its size and location, Germany’s border neurosis is particularly destabilizing to notions of open borders. And given its difficulty with subtlety — as those who encounter the language know firsthand, German speakers’ “over- and misuse” of exclamation and quotation marks are worthy of close study!!! — Germany can’t keep itself from saying the quiet part out loud.
When asked to clarify the paradox of introducing “permanent border controls” in a regime that explicitly forbids them, a CDU spokesperson channeled his best Magritte impersonation, quoting from the party’s platform it ran and won on earlier this year.
3.
Some might call this doublespeak. Others could call it “lies,” which is something German Officialdom is getting increasingly comfortable with. It’s not unusual for police to make exaggerated claims or hide their rules of engagement, but that doesn’t stop most media from repeating official statements until you could be fooled into believing they’re true.
So when police claimed protesters savagely beat one of their own during Nakba Day events in Berlin, the sane thing to do would be to treat the claim like a raccoon in daytime.
If you did, mazel tov; your bullshit radar is properly calibrated. (And if you didn’t, put down the copy of Bild you’re holding and get that foaming at the mouth checked out.) Credible video evidence now makes it difficult to unsee how police confused themselves with the victims of state violence.
4.
Bad as that may be, however, at least the state’s monopoly on violence is grounded in widely accepted political theory as an organizing principle of the modern nation-state. That’s more than you can say for an increasingly central organizing principle of the legal mechanism that permits membership in the German nation-state.
With the state of Brandenburg adding the recognition of Israel’s “right to exist” to the list of prerequisites for citizenship, the legal basis for naturalization is that much more unhinged from a basis in law. Such a “right” for any country to “exist” swims alongside Nessie, which is real only if you stare at that one grainy image long enough while ignoring some basic tenets of marine biology.
Israel’s claim to that “right” is even more difficult to assert, given its existential refusal to define the territory it controls, the laws that govern it, and the people who fall under them and how. Either existence exists within borders that Israel itself does not recognize, or those borders are meaningless and Israeli sovereignty is boundless.
By the way, we just had a podcast about that.
Brandenburg’s unwitting conceit here — one that follows the addition of Israel loyalty questions to the citizenship test and a similar move by neighboring Saxony-Anhalt, which other states are also considering — is twofold.
A would-be citizen only has to recognize that Israel has a “right” to exist, not how that “right” is expressed. So if your preferred form of Israel’s existence is as a cold bowl of borscht with a dollop of sour cream from a container you got for half off because it was two days past its expiration date, go for it.
The probabilities are infinite.
Second, if Brandenburg is going to insist on the lawfulness of a non-concept, then for it to be lawful it has to be universal. So predicating German citizenship on Israel’s “right” to exist means predicating it on Palestine’s, too.
And the “right” of Le Pays Maudit to exist, too, if we’re going to be technical about things.
Anger is an understandable response when there are so many instances of laws being not-laws and not-laws becoming laws. Yet, you can only get so angry at Germany. It is more used to exiling citizens, banning ideas, and making decisions for all of Europe than it is upholding due process.
A bit like that adorable puppy of yours, which sometimes shits in the corner of your living room, Germany is still getting housebroken. Other places, though, that have been doing this for longer should know better than to take a dump on your Persian rug of democracy.