The following paper was presented at the conference “After the End of Revolution: Constitutional Order amid the Crisis of Democracy,” co-organized by the Telos-Paul Piccone Institute and the National Research University Higher School of Economics, September 1–2, 2017, Moscow. For additional details about the conference as well as other upcoming events, please visit the Telos-Paul Piccone Institute website.
Theodor Fontane, the master of German realist fiction, published his first novel, Before the Storm, in 1876. Set during the winter of 1812–13, in and around Berlin, it explores the decisive historical moment when Prussia changed sides—breaking out of its forced alliance with France in order to side with Russia in the anti-Napoleonic war. Yet the dialectic of the moment was such that Germans could join in the rout of the French while nonetheless embracing aspects of the French revolutionary legacy. Thus near the conclusion of the novel, the Prussian General von Bamme, commenting on social changes around him, a reduction in traditional structures of hierarchy, speculates, “And where does all this come from? From over yonder, borne on the west wind. I can make nothing of these windbags of Frenchmen, but in all the rubbish they talk there is none the less a pinch of wisdom. Nothing much is going to come of their Fraternity, nor of their Liberty: but there is something to be said for what they have put between them. For what, after all, does it mean but: a man is a man.”[1] Mensch ist mensch.
Parsing the revolutionary triad, liberty, equality, fraternity, Fontane posits his own variant of nineteenth-century liberalism: he does not expect a modernity marked by individual freedom or social solidarity, but at least the state ought to be able to provide formal equality before the law. Such at least was his response to Bismarckian Prussia. For our purposes, however, the passage in the novel challenges us to consider aspects of variants of contemporary democracy, in the light of that tricolored political formula. If, following Bamme, formal equality has largely become normative, how have liberty and fraternity fared, and do alternative political communities pursue their realization differently?
In these brief comments, I am likely to err on the side of excessive schematization: the positions I want to tease out of several texts deserve more nuance and differentiation than I can provide in this short text. Yet the binary character of the analysis is also a reflection of the highly polarized public debate, certainly in the United States but also in Western Europe, in the wake of various political developments, above all the 2016 election that led to the Donald Trump presidency. The character of the rhetoric, in the press and from politicians, has gone well beyond normal, even spirited debate and, instead, has raised fundamental questions about the character of democratic polities. Trump critics have variously attacked him as a new Hitler and as a Manchurian candidate for Moscow. Meanwhile Trump’s own inaugural address, with its Jacksonian tones, was a broad-brush attack on the whole political elite. This discourse goes far beyond standard policy differences and points toward fundamental, even constitutional questions about the character of democratic governance.
One trope in this polarized discourse provides a promising opportunity to link this debate to an analytic interest in alternative constitutions of democracy: the assertion that circulates in parts of the liberal press that German Chancellor Angela Merkel is now the leader of the free world (or the West), a status presumably for which the American President has allegedly disqualified himself. What does Merkel represent and why does she function as a foil to Trump? Why would Germany—of all countries, given its national history—suddenly be seen as a plausible candidate to lead the West? How do contemporary Germany and the United States represent alternative models? Why are Germany and America different kinds of democracies?
A good piece of the transatlantic sniping between Washington and Berlin is, of course, just a function of electoral politics. Merkel faces the Bundestag elections in September, and she can secure her by now likely victory by displaying her distance from Trump. But something deeper is going on, beyond the personalities of Trump and Merkel: alternative traditions and expectations regarding government. The United States and Germany do indeed represent different political cultures, and these differences are reflected in contrasting constitutional languages, as we will see below. In terms of political culture, from a German point of view, Americans are excessively individualistic: one could document this with accounts such as Thomas Mann’s in his 1922 speech on “the German Republic,” a foundational statement for the Weimar era, but also in surveys of political values. Meanwhile from an American point of view, Germans are excessively conformist, authoritarian, and obedient. Undersocialized loners on the one hand, pliable crowds on the other, Americans versus Germans: this is the stuff regrettable stereotypes are made of, but these images are also pertinent to constitutional structures—liberty versus fraternity—as the following high-velocity itinerary will suggest, from foundational eighteenth-century documents to recent political speech.
Few documents of the early American republic have received as much attention as George Washington’s “Farewell Address,” published on September 19, 1796, in which he announced his withdrawal from any consideration for a third term as president.[2] Based on his own notes but drafted first by James Madison and then developed by Alexander Hamilton, the address strikes themes that have recurred repeatedly through American political history, from its critique of partisan factionalism and parochial regional interests to its apprehensions concerning foreign affairs. Like any political statement, this one too can be read in terms of the specific historical context; among other things, it entails a Federalist attack on Thomas Jefferson.[3]
Yet something more fundamental is at stake. Washington’s evidently deep anxieties concerning threats to the cohesion of the union—his repeated reference to the centrifugal forces of parties, regions and foreign powers—are ultimately the flip side to the fundamental assumption he makes concerning his addressee, the “people of the United States,” whom he associates with the absolute priority of liberty. Thus he concludes the opening section, in which he affirms that he will not continue as president, with a set of wishes including: “that the free Constitution, which is the work of your hands, may be sacredly maintained; [and] . . . that . . . the happiness of the people of these States, under the auspices of liberty, may be made complete.” The Constitution, in other words, is a free constitution because it is a work of the people, i.e., “your hands,” and the people acts in a context of liberty. Washington is offering a Lockean vision, in which liberty precedes law, and law therefore takes shape to protect liberty and pursue prosperity: but the condition of liberty is prior. The freedom of the people pre-exists the formation of the State. So, before launching into his set of specific programmatic statements, his political recommendations, he affirms one more time: “Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.” He could not be clearer: the people’s innate love of liberty precedes any recommendation, any advice or policy, of the executive, even the recommendations that he, the ultimate founding father, is about to offer.
Yet Washington suggests that this prioritization of liberty has consequences. While liberty represents the existential condition of any politics—because the free people precede the formation of the political community—it is simultaneously a potential source of disruption, because it can unleash the forms of partisanship and regionalism against which he warns. Washington therefore offers a de facto corrective: not state power, by any means, but rather religion and morality. The political form of self-governance depends on a virtuous citizenry, each of whom can govern his own innate passions. Only citizens who, individually, have the character strength to govern themselves are equipped to participate successfully in the political self-governance as citizens of a republic. Governing oneself requires morality, and the source of morality is religion. Liberty and religion for Washington therefore have reciprocal importance for political life (much as Pope Benedict described the congruence of reason and faith in the Regensburg Address of 2006).[4] “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . . Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?” To be sure, the defense of religion here also serves as an attack on Jefferson, in an early version of a culture war: “In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.” Jefferson is implicitly cast as the enemy of religion and therefore a threat to the republic. Yet beyond that specific historic significance, Washington primarily mounts a substantively republican argument that posits a deep connection between liberty and virtue, and the dependence of the latter on religion.
For Washington we also know that religious affiliation could not be grounds for any restrictions on civil rights, as he wrote in his famous “Letter to the Jews of Newport,” of August 17, 1790: “All possess alike liberty of conscience and immunities of citizenship.”[5] For our purposes, the key issue and what distinguishes, from Washington’s point of view, an American constitutional character is the presumption that liberty, including that “liberty of conscience,” precedes the political community. It is therefore not up to any state to grant freedom, since people are a priori free: “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.” In this analysis, the European states’ Enlightenment-era granting of tolerance appears retrograde because it assumed that the sovereign, typically the monarch of enlightened absolutism, is endowed with the capacity to grant freedom. In contrast, for Washington, the freedom of the people predates the power of the state.
Washington was an Enlightenment thinker, which allows me to line up his statements with elements of Immanuel Kant’s programmatic statement, “An Answer to the Question: What is Enlightenment,” of 1784, in order to contrast American and German constitutional cultures. Kant is of course a crucial source for German political thought and liberal democracy in general. Yet in this well-known text, which culminates in a call for the public use of reason, Kant approaches the public with a tone that can be described at best as scolding, at worst as arrogant: while Washington jabbed at the intellectual Jefferson, Kant stands as the intellectual who looks down at the deplorable public, the bulk of the population that refuses to think: “Laziness and cowardice are the reasons why such a large proportion of men, even when nature has long emancipated them from alien guidance (naturaliter maiorennes), nevertheless gladly remain immature for life. For the same reasons, it is all too easy for others to set themselves up as their guardians. It is so convenient to be immature! If I have a book to have understanding in place of me, a spiritual adviser to have a conscience for me, a doctor to judge my diet for me, and so on, I need not make any efforts at all. I need not think, so long as I can pay; others will soon enough take the tiresome job over for me.” Gone are Washington’s “auspices of liberty,” replaced by Kant’s presumption of nearly universal ignorance. Kant’s solution is familiar: some individuals will start with a public use of reason, and others will follow. Even this prescription is hierarchical, since it assumes that the many need the few to lead them. Moreover, in what he designates as a private sphere, the realm of labor, reasoning is prohibited, and while reason is necessary in public, he stipulates that it only be undertaken as long as it remains effectively inconsequential and limited by the obligation for obedience. Discipline must be maintained, and he envisions speech as free only where sufficient police power preserves order. “But only a ruler who is himself enlightened and has no fear of phantoms, yet who likewise has at hand a well-disciplined and numerous army to guarantee public security, may say what no republic would dare to say: Argue as much as you like and about whatever you like, but obey!” The public use of reason, vital for enlightenment, must respect the laws, no matter how irrational, and even this curtailed civic life appears as a concession on the part of the state. The state allows for free speech only because it has an effective police force to uphold the law. Where Washington posits the people as first of all free, Kant treats the people as subjects and therefore subordinate. In the best of cases, these subjects have an innate potential for reason, although they typically fail to use it; when they do use it, their ability to act on the insights of their reason is always limited by the prerogatives of the monarch, the state, and the law.
For the contrast between the two traditions, Kant’s complaint about the people’s failure to reason is less important than the discrepancy between Washington’s priority of liberty on the one hand, and Kant’s primacy of state and reason, or even, the state as reason, on the other. The respective constitutional languages echo this difference. The German Basic Law (Grundgesetz) commences with a listing of the participating states, the Länder, which have pride of place in this federal statement, in contrast with the populism of the American rhetoric announcing “We, the people.” The first section of the Basic Law concerns basic rights and commences with an assertion of human dignity (“Würde“), surely a laudable response to Nazi era atrocities while also drawing on a tradition of Catholic teaching. The first article of the German text however makes no mention of liberty or freedom, although it invokes “human community, peace and justice in the world.” The second article gets closer to freedom but only in the sense of the “free development of one’s personality,” with the qualification that one not violate others’ rights, the constitutional order or morality laws. None of these distinguishing features of the foundational German text is egregious, but the rhetoric is repeatedly one of the state granting rights, while also restricting those rights by the law.
It is however article 4, section 1, that lends itself best to a contrast with the American Constitution: “The freedom of religion of faith, of conscience and the freedom of religious and philosophical confessions are inviolable” (“Die Freiheit des Glaubens, des Gewissens und die Freiheit des religiösen und weltanschaulichen Bekenntnisses sind unverletzlich”). This a clear and unambiguous statement of religious freedom, a speech act describing the absence of restrictions on religious practice, although arguably the assertion of inviolability could imply the logical possibility of precisely such a violation. Be that as it may, the statement is indisputably one concerning the condition of religion. On that point the contrast with the American language is stark, where the First Amendment refrains from making any similar substantive assertion concerning a religious condition and instead addresses the state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While the German constitution makes a statement about religion (or rather, religious freedom), the American text does nothing of the sort buy instead, explicitly, articulates a prohibition on state power. It is not a statement about subjects to whom freedom of religion is granted but, on the contrary, a statement by citizens limiting the freedom of the state in order to defend their own liberty, in particular the freedom of religion. The two constitutional statements operate in very different directions: the law grants religious freedom on the one hand, the law restrains the state on the other.
American and German constitutional cultures and their respective modes of liberal democracy therefore represent alternative outcomes of Fontane’s novelistic reflection on the French revolutionary appeal: liberty here, fraternity. The United States pursued a libertarian, or a libertarian populist, route (whereby libertarianism and populism themselves are by no means always compatible), while Germany followed a Kantian path prioritizing obedience to the law (no matter its provenance), the state, and first principles: on the one hand, the principle of liberty; on the other, participation in the community of the law (fraternity). Washington invoked the importance of experience over speculation. That was another swipe at Jefferson, but it also highlights a greater distinction. The United States is inductive, Germany deductive; and the contrast between empiricism (an Anglo-American tradition) and German idealism continues to echo through current political debate, including the question of the leadership for the West, which returns us to the stylized contrast between the German Chancellor and the American President.
As is well known, candidate Trump ran an often highly controversial campaign, and as an outsider to the political system, he faced equally heated opposition from many quarters. His victory came as a surprise, as much in Germany as elsewhere, and Merkel sent her congratulations wrapped in a carefully worded message, intended to demonstrate her distance from Trump, in a way that is symptomatic of contemporary German political culture. Her message to victorious candidate: “Germany and America are bound by common values—democracy, freedom, as well as respect for the rule of law and the dignity of each and every person, regardless of their origin, skin color, creed, gender, sexual orientation, or political views. It is based on these values that I wish to offer close cooperation, both with me personally and between our countries’ governments.”
On face value, the statement makes German cooperation with the United States conditional on the listed terms of shared values. At stake then is not, for example, security concerns that the United States and Germany might be reasonably deemed to share—that is, the NATO question for which Trump would later face criticism for his seeming equivocation—but instead a transatlantic participation regarding, for example, “sexual orientation,” which Merkel even lists prior to “political views.” That representation of the German–American relationship has of course little to do with its actual historical development. One could parse Merkel’s statement further by noting that she invokes “dignity,” from the Basic Law, rather than the liberty of persons. Similarly her phrasing places freedom in second position, following on democracy, which defines the structure of the state, rather than opting for the reverse order, in which the democratic state would follow on individual freedom. Each political culture has its priorities. Of course one can hardly fault the German Chancellor for giving expression to a distinctly German political culture, and that culture, the constitution of German political life, is evidenced in the core message of the congratulatory note: conditioning the alliance on abstract principles rather than shared interests, an approach fully within a German idealist tradition.
Trump’s critics present him as having a transactional rather than a relational approach to politics, pursuing short-term advantage rather than building reciprocity and community. Yet his answer to Merkel, presented indirectly in his July 6 speech in Warsaw, had little to do with narrowly defined interests, although vital issues, particularly shared security concerns, were certainly crucial to his argument. However his account involved above all the importance of history and its legacy for the present. Invoking Polish history, especially the long struggles to achieve and maintain independence, he established the validity of national history, within the context of a broader western civilizational narrative. Where Trump’s critics caricature him as a businessman with only venal interests at stake, in contrast to high-minded principle, in fact he counters Merkel’s idealist principles—Washington might have treated them as “speculation”—with history, an appeal to tradition against theory in the spirit of a Burkean conservatism.
Merkel’s statement establishes a principle of universal dignity, followed by a list of glosses, with pride of place given to the injunction to disregard place of “origin.” That erasure of nationality is consistent with her open-borders policy (no matter how she has attempted to modify or even retract that policy implicitly through an arrangement with Turkey) and the aspiration to dissolve state sovereignties into the European Union. Trump argues for the opposite: the individual freedom of the citizen and the sovereignty of the state depend on each other. Hence the need to resist external adversaries, threats to our body politics, as well to maintain internal capacities, a nation’s virtues: “Americans, Poles, and the nations of Europe value individual freedom and sovereignty.” The sequence of individual freedom prior to sovereignty is crucial. He continues, “We must work together to confront forces, whether they come from inside or out, from the South or the East, that threaten over time to undermine these values and to erase the bonds of culture, faith and tradition that make us who we are. If left unchecked, these forces will undermine our courage, sap our spirit, and weaken our will to defend ourselves and our societies.”[6]
Trump’s liberal critics view passages like this and others, where he identifies an Islamist enemy and invokes national histories, as expressions of paranoia and racism.[7] Yet his argument is very much in a Washingtonian tradition; he is concerned with the viability of the nation, and the Western community of nations, and anxious that partisanship and parochialism could enervate the capacity of the people. Thus Trump: “The fundamental question of our time is whether the West has the will to survive. Do we have the confidence in our values to defend them at any cost? Do we have enough respect for our citizens to protect our borders?” Trump draws a connection between borders (meaning both immigration policy and defense against foreign invasion, which in Warsaw meant Russia) and values; this pairing echoes Washington’s connection between the union, threatened by dissolution, and morality, which for Washington implied religion. To this, Trump adds history and will. To emphasize this connection, Trump’s speech invokes the memory of John Paul II’s visit to Warsaw in 1979, describing a scene in which the assembled crowd called out for God. His lesson is not only the call for a freedom of religion against the Communist government but, more importantly, the recognition that religion can be foundational for freedom, national and personal.
Contemporary Germany and the United States, obviously, both belong to the taxonomy of modern liberal democracies. In fact, each of these two political systems should be understood with sufficient suppleness to allow for varying electoral outcomes or shifting governing coalitions. Yet even allowing for this regular sort of variation that defines democratic politics—the United States under Obama or Trump, Germany under Schröder or Merkel—these two liberal democracies display some deep variations in constitutional history, culture, and institutions. Where the American tradition invokes the figure of the free individual and the priority of liberty, Germany pursues the rational state as the vehicle with which to realize categorical imperatives. The success of the former depends on the virtue of the citizen and hence the importance of religion; for the latter religion is, at best, a marginal function of the state which collects taxes to support churches. Aside from his reference to external threats, Trump’s Warsaw address also warns that growing domestic bureaucracy can undermine the national will. While this is an expression of his characteristic libertarian populism, it also points to a basic asymmetry between the two models: it is nearly unimaginable that Germany or other European liberal democracies could develop significantly in directions that would prioritize liberty, but future American elections could very well steer emphatically toward a model of European statism and expanded bureaucracy. “There is a tide in the affairs of men.”
Notes
1. Theodor Fontane, Before the Storm: A Novel of the Winter 1812–13, trans. R. J. Hollingdale (Oxford: Oxford Univ. Press, 1985), p. 674.
2. “Washington’s Farewell Address 1796.”
3. See Jeffrey Pasley, The First Presidential Contest: 1796 and the Founding of American Democracy (Lawrence: Kansas Univ. Press, 2013), pp. 218ff. and 457–58. See also Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford Univ. Press, 1993), pp. 489–97. Classics on this topic include Felix Gilbert, To the Farewell Address: Ideas of Early American Foreign Policy (Princeton, NJ: Princeton Univ. Press, 1961) and Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: Univ. of California Press, 1969).
4. Pope Benedict XVI, “Faith, Reason, and the University: Memories and Reflections.”
5. George Washington, “From George Washington to the Hebrew Congregation in Newport, Rhode Island, 18 August 1790.”
6. “Remarks by President Trump to the People of Poland.”
7. See Peter Beinart, “The Racial and Religious Paranoia of Trump’s Warsaw Speech,” The Atlantic, July 6, 2017.
