The court’s appeal to constitutional patriotism in its order on the national anthem demonstrates a forsaking of intellectual enquiry into political theory and law, and a perilous road to judicial hegemony.
This was perhaps not the first time that the battleground for nationalism and patriotism was redefined when the ‘national anthem’ sought a hearing from the Supreme Court. In one stroke, the debate was moved from the realm of politics to the realm of highest judicial dictate, leaving no further ground for differing minds or competing conceptions.
That the legitimacy of the Supreme Court remains fallible, not least because of increasing individuality of specific judges on the bench, has been deplored, and perhaps rightly so. While the meaning of the law ought best to distance itself from sentiments and moral indignation, it would be wrong to suggest that a purely positivist conception of the law is per se desirable. Pure positivism, devoid of political philosophy and a socio-economic construct, will remain myopic, distant and feckless. As the court displays a near judicial bankruptcy of reasoning, it is extremely difficult to position one’s response to the court’s invocation of “national identity, national integrity and Constitutional Patriotism” as either an exposition of pure sentiment or political philosophy. Arguably it is both and has inflicted yet another blow to the court’s standing and authority. Moreover, the court’s appeal to constitutional patriotism in the order demonstrates a complete forsaking of intellectual enquiry into political theory and law and, what is worse, a perilous road to judicial hegemony.
The history of constitutional patriotism
In two brief paragraphs, the court seeks to encapsulate almost seven decades of political thought on ‘constitutional patriotism’ and ‘national identity’, bereft of its context, variations and underpinnings. The court’s recalcitrant approach in tossing around concepts of profound significance without the slightest enquiry into its meaning or relevance is displayed, most pitiably, in its understanding of constitutional patriotism as being opposed to individual rights. Indeed, philosophical enquiry does not conceive of a single or monolithic connotation of the term ‘constitutional patriotism’ and it has, through several thinkers, assumed varying dimensions. However, even in its most fundamental conception, it stands as an affirmation of liberal constitutional principles.
As a political theory, the roots of constitutional patriotism go back to philosopher Karl Jaspers, who in a series of lectures in 1946 explained the question of “German guilt” as a result of the acts of the Nazi regime during the Second World War. Indeed, post World War II, several philosophers were increasingly concerned with social unity, identity and the lasting stability of the German state. He advocated for an open dialogue between citizens, for a collective and lasting memory of the monstrosity of the war, and to engage in an argumentative recollection of the ills of their government. Jaspers was clear: the way to solidarity for the German people, dismayed by an apologetic past and a fragmented society, was in a conscious and collective reflection on their past, rather than in its repudiation. In this regard, the constitution came to be the focal point of cohesion for the German people and the German constitutional court its uncontested harbinger.
However, it was not until late 1970s that one of Jaspers’s students, Dolf Sternberger, a philosopher in his own right, coined the term ‘constitutional patriotism’ to denote an affinity towards the laws and the constitution, and especially its democratic and libertarian connotations. His call was for an unflinching approbation of the Basic Law (the German constitution) and for the German people to identify with its core values. The darker side to his philosophy was, however, a more aggressive form of defending the democratic polity from authoritarianism: what has been later described by philosophers as “militant democracy”. Needless to say that the context of the war, the failure of democratic institutions and the overpowering of the old Weimar constitution was central to Sternberger’s idea of militancy, as a means of protecting and preserving democracy.
In many respects differing from Sternberger, Jürgen Habermas, one of the most noted contemporary German philosophers, picked up from Sternberger’s idea of constitutional patriotism and shaped it as a response to both German society’s precarious past and its future engagement with the integration process of nation-states, most notably the EU. As regards the former, Habermas subscribed to the idea of citizenry engagement, communication and deliberation in fostering a common identity, as viewed through the prism of constitutional principles, like democracy, self-determination and equality. Citizens ought to strive towards a common identity, not through religion, tradition, morality or culture, but through mutual respect towards divergent opinions, critical thinking and rationality, all but expressions of a constitutionalist idea of liberal democracy. For Habermas, an open and unrestricted dialogue amongst the people with respect to their collective identity, removed in full measure from existing cultural, social or political norms, was the only way to social cohesion. In this sense, as Jan-Werner Müller and Kim Lane Scheppele write, “Constitutional patriotism promises a form of solidarity distinct from both nationalism and cosmopolitanism”.
Habermas and Sternberger’s differing positions point to a certain danger in introducing a concept as fluid as constitutional patriotism in binding judicial decisions. Depending on one’s stance, ideology and conviction, it is effortless to fashion an idea towards one’s conception of an ideal common aspiration. Indeed, Sternberger’s darker variant of constitutional patriotism was used in Germany to abridge certain fundamental rights including free speech and association, as a necessary means to ward off future fascism and totalitarianism. A court-enforced social meaning of constitutional patriotism has an alarming tendency to legitimise a particular understanding, a certain perception, or even worse, a forceful championing of the same.
However, it is important to emphasise that constitutional patriotism as a legal theory has had its critics. The use of the concept has been described as normatively inexact, exceedingly German-centric and increasingly superfluous even with respect to Germany’s own political order. Therefore, any invocation of the doctrine has to be proceeded with caution and, above all, upon a rigorous enquiry into its political and social ramifications.
Import of the court’s reasoning
Against this backdrop, the Supreme Court’s reasoning, perhaps inadvertently, has far-reaching import for both the ordering of our community and the conception of a collective identity. It dictates that the court’s understanding of constitutional patriotism does not allow for “any different notion or the perception of individual rights”; that there is no space for citizens to be guided by their own sense of norms and values, through a deliberative process, distinct from that of the political state. That the state subsumes and orchestrates a singular notion of identity, and to fall outside of it, is “constitutionally impermissible”. With that in mind, the court’s intention seemed all but clear, “instil the feeling within one, a sense of committed patriotism and nationalism”. To disguise that through a reading of the ‘fundamental duties’ and notionally embedding the same in the constitution, however, does not absolve the court from the vanity of its conjecture.
The court’s invocation of constitutional patriotism finds no ground to stand on, either in political theory or in the law, and yet transforms itself into a pernicious tool in the hands of a certain few, to be wielded against the erring individual. The pitfalls of judicially-engineered societal norms has opened itself threadbare and as the court perpetuates the myth of constitutional patriotism, normativity is lost to subjectivity, constitutional duty is transformed into moral ordering and legal reasoning is dispensed with for perceived notions of “collectiveness” and “oneness”.
Kanad Bagchi is currently pursuing his doctoral studies in law in Germany.