Maximilian Steinbeis has a book deadline in three weeks, but the German lawyer and writer concedes he has been distracted and beguiled by Prophet Song, a novel about an authoritarian takeover in Ireland.
Like the novel’s Booker-winning author Paul Lynch, Steinbeis likes to shatter complacent “it-couldn’t-happen-here” thinking on his legal and constitutional platform, Verfassungsblog.
After years of reporting on rule-of-law battles in Hungary and Poland, Steinbeis is now focused on his homeland and the far-right Alternative für Deutschland (AfD).
The populist party leads polls in three eastern states — Saxony, Thuringia and Brandenburg — where voters elect new state parliaments in September and local councils in May and June.
As the AfD edges closer to power, studies by Steinbeis and his associates have revealed weaknesses and exploits open to extremists in Germany’s constitutional order and parliamentary procedures.
“All procedures and norms are open to abuse, all institutions can be captured, but in Germany we depend too much on our lawyers and constitution to protect the rule of law,” says Steinbeis.
Rather than learn from its history — in particular, the downward road to two 20th-century dictatorships — Steinbeis sees a certain “arrogance and self-satisfied thinking here that ‘we carried out the worst crime of all time and are thus best placed now to avoid the dangers that lead there’”.
The opposite may be the case, he argues, given Germany is a country where lawyers are over-represented at every level of administration. But lawyers are trained to examine what has happened, Steinbeis argues, not to speculate on what might happen next.
A former legal journalist with the Handelsblatt business daily, Steinbeis first attracted wider attention with his 2019 essay on a charismatic “people’s chancellor”. The text presented a populist blueprint to reform Germany’s constitutional court, hogtie the president, overhaul election law and replace the Basic Law, Germany’s postwar constitution.
“Many said it was totally unrealistic, only likely in eastern European states that don’t quite get democracy,” he remembers. Five years on, with a run of AfD election gains likely to continue in the coming months, the mood is different.
At present, the federal justice ministry is working on a fix for one of the gravest problems flagged by Steinbeis and his team: constitutional court procedures.
Judges for Germany’s highest court are appointed with a two-thirds parliamentary majority. The idea is to ensure that consensus candidates, rather than political headbangers, go to Karlsruhe.
But the law underpinning these appointment procedures — as well as the number of judges and chambers — can be modified with a simple parliamentary majority.
As change looms on that front, Steinbeis has moved on to what he views as Germany’s most pressing democratic risk: the eastern state of Thuringia, population 2.1 million and its looming local and state elections.
Leading polls with about 30 per cent support is the local AfD, headed by the party’s most extreme state leader Björn Höcke.
Until now, all other parties have refused to co-operate with the AfD in Thuringia’s state parliament in Erfurt. But if the AfD tops the poll in September, Höcke or a confidante could be elected parliamentary president. Whether steering proceedings or picking an email server provider, everything is of concern given the party’s close Russia ties.
Meanwhile, a ban on political co-operation with the AfD at municipal level, self-imposed by other parties, is likely to crumble still further if, as is likely, AfD candidates secure more seats in May’s local elections.
Deliberate obstruction of national and EU law at local level is one of the many dangers flagged by Steinbeis thanks to his “Thuringia Project”. With €140,000 in crowdfunding, his team of legal analysts and political scientists fanned out across Thuringia and held more than 100 meetings with MPs, civil servants, judges and others to discuss what-if scenarios.
As he finishes his book on Thuringia, Steinbeis is already looking at an untested constitutional provision: Article 37. This allows the federal government in Berlin to force a state government to meet its constitutional and democratic obligations by adopting “the necessary steps”. But what are the necessary steps?
“We’ve never had such a case and there is very little research in this field because no one has pushed the button yet,” said Steinbeis.
While no constitutional order can be made totally watertight, the lawyer is passionate about reducing rule-of-law vulnerabilities by empowering people to be vigilant.
That is why he found Prophet Song such a compelling read. At its heart, he says, is “a woman who can’t imagine terrible things happening, even after they do”.
“That’s why we are doing all this work, because by the time things happen, then it is too late,” says Steinbeis. “Ireland is the last country where something like a fascist government could happen. Isn’t it?”
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