On 9 November 1992, the fifty-fourth anniversary of the pogrom night of 1938, I delivered a speech to a distinguished audience at the Paulskirche in Frankfurt. "It is difficult for any speaker to find the right words for this occasion", as Habermas says, "especially before an audience which includes many members of Jewish community, victims and the descendants of victims".¹ The context of my speech provided an additional source of embarrassment for a German who is not a Jew: day after day and night after night, we saw or heard of neo-Nazi brawls in our unified Germany, and even, as in Rostock and Greifswald, of veritable pogroms against foreigners. Rage had overcome the inhibition imposed by civilization against killing; the murders were so cowardly and bestial that we will be a long time coming to terms with them, even assuming that we will again soon have the leisure to do so. While no one in Germany would have dared suggest it two years ago, this rage against foreigners has merged with the mainstream of traditional anti-Semitism. Jewish cemeteries and monuments to the concentration camps have been repeatedly vandalized. In a tavern in Wuppertal, skinheads severely beat a man they thought was Jewish, poured spirits over him and set him on fire, then took him to the Dutch border in the tavern-keeper's car; for almost two weeks no witness thought the event worth reporting. Now I hear people in taverns talking about Jews, and saying (though also about those who object) that Hitler forgot to send them to the gas chambers. (Like slogans were shouted at us in the streets of Heidelberg back in '69.) The newspaper vendor on the corner blusters confidentially about "foreigners and Jews"; football fans shout "Jews to Auschwitz" or "Death to Jews".

In a speech dedicated to the victims of Kristallnacht, I felt that it would be impossible, and indeed wrong, to be silent about recent events - not because I wanted to "normalize" German history by false comparisons, but just the opposite. The insinuation that I was trying to make the Third Reich look less guilty by comparison is infamous: an insinuation made by CDU Representative Hemzal, one of the many who, with their party colleagues and some army officers, reacted to my speech by leaving the Paulskirche in fury. The fact is that I repeatedly emphasized, as drastically as I could, the strict impossibility of such a comparison. However, it is possible to "normalize" the Nazi crimes by interpreting the thesis that "Kristallnacht is not Rostock" to mean: "Rostock was not so bad; if it's necessary to limit civil rights to win back the approval of those who were foreigners, then we must do so". Hemzal's party has long acted in the belief that "future elections in Germany can only be won on the right", and the SPD has recently taken up this belief as well.

The gist of my speech, as Habermas accurately started in his article about in Die Zeit, was that in Germany since the Napoleonic wars the desire to achieve democratic freedom has again and again been overshadowed, and in fact stifled, by the desire for national unity and self-assertion, and that this tendency has inhibited the formation of a true understanding of democracy. The prevailing view regarding the nature of democracy is expressed even today in the demand that public policy yield to the pressure of the street, to the autonomous will of a de facto majority. To follow this maxim, the government would be required to establish as policy the widespread desire to abolish civilized relationships - and free general elections that would result in a coalition of National Socialists and German Nationalists could be irrevocably legitimized by the voice of the people.

My speech aroused special indignation by comparing this current view of democracy with the "plebiscite democracy" of Goebbels. I still do not see why I should apologize for the comparison (as the CDU demanded that the mayor of Frankfurt make me do). The striking similarity between my quotations from Goebbels and the statements of politicians of all parties (except the Greens) during the debate over the abolition of asylum rights is the problem of those politicians, not my problem. City Councilman Hellwig, a member of the CDU, said that I made use of "Nazi horrors" in my speech "without restraint", that I violated the rules of decency by verbal "excursions into the Third Reich". Recall that the occasion of my speech was precisely the crimes of the Third Reich, and that my subject was the need to grieve, which those crimes require. Besides, I did not compare Goebbels (whose name simply cannot be avoided in a speech memorializing Kristallnacht) with any leader of the four major parties. Rather, I pointed out the problems attendant on a view of democracy (a view represented by Goebbels, and hence one would hope, discredited) in which policies are legitimized by the masses. But as my quotations from our party leaders showed, a frighteningly large number of politicians actually accept and proclaim this view of democracy, and do not see it as a problem. For my part, I agree with Ernst Tugendhat: "Only a totalitarian state desires total agreement".

Recently the wave of violence seems to have abated. No wonder, since the main reason for the hatred of foreigners, the right of asylum, has practically been eliminated - the borders of the Federal Republic are for all intents and purposes closed. The initiators of the "Hamburg Manifesto" (among them Inge and Walter Jens) have concluded that the new limit on the right to political asylum "is, as we foresaw and feared, the equivalent of eliminating it",² and the chief administrative and constitutional justices of Rheinland-Pfalz and Baden-Württemberg have already raised questions about the constitutionality of the change. But the SPD showed itself, as Die Zeit put it, to be incapable of compromising, and simply capitulated. "The people" wanted it so, and according to the prevailing understanding, popular will legitimizes the acts of a democracy. never mind the logic: the cause of the hatred of foreigners is the foreigners themselves; eliminate them, and Germany will be completely normal again.

During the recent debate in the Bundestag over neo-Nazism, Oskar Lafontaine made clear that the ethnic self-definition of the Germans (which reaches even into the Basic Law) is the reason for their failure to understand the difference between the völkisch state and the constitutional state. There was disquiet in the chamber on both left and right, if what I saw and heard on television was accurate. Yet this distinction has been recognized in Germany since Kant's day, since the time of Friedrich Schlegel and his circle. The distinction has been known to the educated, even to those among the opponents of the type of nation that became reality in the American and French revolutions. But the educated have not been very numerous, or else they have been very quiet.

My speech in the Paulskirche was made more pointed by the disturbing coincidence of three November Ninths in German history: the summary execution in 1849 of Robert Blum, a left-liberal delegate to the Frankfurt parliament that met in the Paulskirche; the pogrom night of 1938; and the fall of the Berlin Wall in 1989. All three events, I said, are associated, in some way, with the thin ice (or feet of clay) on which our democracy stands and with the resistance of a generally successful majority to its very existence. The democratic constitutions that German has enjoyed were made possible by the intervention of victorious Western powers after catastrophic defeats, and would never have come about through the will of the German people. We can claim credit only for the defeats that led to our freedom. Contemporary German terminology is in this regard unstable: Was Germany freed from its worst persecution on 8 May 1945, or did it suffer the worst defeat in its history? As for democracy: we all know how quickly the "healthy sensibility of the people" went to work to destroy the Weimar Republic through (almost) free general elections.

II

I will not belabor the remembrance of Kristallnacht in my Paulskirche address, and will begin instead with my commemoration of the shooting of the Cologne liberal Robert Blum, after which I will turn to those aspects of German unification that are relevant to the subject of this symposium.

Blum was, as I said, a representative to the Frankfurt national assembly, and his execution marked the deliberate break of the reactionary party (which had been successful in Austria) from participation in the task that was ongoing in the Paulskirche, the task of drafting a constitution. This constitution, whatever its faults and limitations, differed from the pogrom-fantasies of the time even in ontological status: it never became reality. Reaction was stronger in Germany than democracy was, and the latter is now being put to the test again. In the words of Ignatz Bubis, the leader of the German Jewish community: since the collapse of the Third Reich we have learned democracy, but we are not born democrats. We can still learn much, in other words, from the discussion of basic rights that occurred in the Paulskirche assembly; women and Jews, who were among the groups most discriminated against under the prerevolutionary legal system, attempted to obtain legal and social equality by establishing their own press and various associations.

But both groups were vulnerable to strong opposition forces. Even in the so-called March Days, there was economic anti-Semitism among the farmers, exacerbated by Christian and national discrimination, and expressed through riots directed against Jewish merchants. Excesses occurred in some eighty places in Baden, Württemberg, Bavaria, Hessen, Upper Silesia, and Posen, but these evoked no organized self-defense and no common response from the Jewish community. In Germany, the Jews relied on the middle class and on "good people", who, unlike the "mob" which was carrying on the pogroms, extended the hand of brotherhood. And developments seemed to justify the Jews' hopes. They emerged, for the first time, as active political fighters and as elected representatives in the parliament. Moritz Heckscher, Johann Hermann Detmold, Johann Jacoby, Adolf Fischhof, Gabriel Riesser, and Eduard (v.) Simson functioned effectively in the parliaments of Vienna, Berlin, and Frankfurt; Marx and Stahl were among the most prominent political journalists. The Frankfurt parliament's resolutions on civil rights (article five) proclaimed the most complete legal freedom that Jews enjoyed, including complete freedom of religion and freedom of conscience. The failure of the revolution caused some of these rights to be revoked, but they were not yet utterly lost.

Conservative authors too, like Friedrich Schlegel (in the Austrian Observer of 2 March 1815), supported the proposal that Jews should receive full rights as citizens, "that Israelites should be emancipated completely from their previous oppression, and from now on be acknowledged and treated as true citizens".³ He expressed support for the decree on the legal equality of the Jews (article sixteen of the Acts of the German Federation) and sharply condemned the "most arbitrary and cruel resolutions" of individual states, such as Mecklenburg and Frankfurt, that were intended to injure them (475). And Schlegel was sensitive to the following important distinction:

Though the state and any enlightened government must desire that the Jews, in the previous, segregating sense of the word (as a state within the state), should, as much as possible, cease to be Jews, nevertheless this should by no means imply that the state could desire that the Jews become indifferent to their own religion or to all religion. This would be a great evil, and every truly enlightened government will always treat the religious education of all its subjects as the first foundation of civil society.

The missed chance of the German revolution of 1848-49 shares unpleasant characteristics (and here I am moving on to my second topic) with the "catch-up" revolution of 1989 in the GDR. This revolution, which began as a struggle for the democratic selfdetermination of the "East German" people, soon turned into a demand for national unity - and only the latter was fully realized. (The motto of 1989 shifted rapidly from "We are the people" to "We are ONE people".)

But this too has a tradition in Germany. Late nineteenth-century historiography is not the first place where unity is the leitmotif, rather than revolution of freedom. As early as 29 March 1817, Schlegel, observing the Frankfurt parliament, wrote that "The effectiveness of the [German] Federation depends on the enduring national interest, which gives the Federation its enduring nature".⁴ In the revolution of 1848-49, it was, surprisingly, the left that made national unity the highest goal) especially as regards the Schleswig-Holstein question). This was also true for the first generation of radical students, whose fraternity had been forbidden in 1819 and who were now in midcareer. From their circles came the founders of the Association for Press and fatherland, which extended over southern and central Germany and maintained close contact in the universities with the revolutionary secret society Germania. In 1832, these forces organized the Hambach Festival, which (it was said) would have sufficed, in Switzerland, to democratize a cantonal constitution. Its slogan, "Fatherland, Sovereignty of the People, Federation of the Peoples", put the national above all, and the main goal of these revolutionaries was the "reunification" of Germany.

Long before there was a choice between "Lesser Germany" and "Greater Germany", there was the choice between "unity without freedom" and "freedom without unity". Thus in 1840, when France claimed the Rhine border area, national feelings soared, despite what sympathy there was for constitutional government. (This was the time when the "Deutschlandlied" was written by Hoffmann fon Fallersleben.) There were voices that clamored for a pan-German constitution that would enshrine popular participation. In this regard, 1840 was a turning point.

To anyone who considers the history of unsuccessful attempts at democratization, the current political conflict in Germany will seem a repetition of the conflict between the national-democratic and the national-antagonistic positions on the question of German unity. Both positions were based on völkisch rather than constitutional grounds, but while the first variant was built on the principle of a (national) right of self-determination and expressed itself in terms of parliaments, republics, and international relations, the second began with the idea of a German "essence" that was "superior". This second position required hostility toward foreign lands in order to bring about national integration, a need manifest all too terribly in Kleist's Germania to Her Children: "Go strike them [the French] dead; the world's high court will never ask for a report"; and similarly in Ernst Moritz Arndt's The German's Fatherland:

The German's fatherland is where
all foreign influence is rare,
where every Frenchman is despised,
and every German friend is prized.

It is no wonder that people bound together in this way were satisfied with the solution "unity without freedom", and that they defended with ever-increasing aggressiveness their national solidarity against all that was foreign.

The same is true, mutatis mutandis, for the German unification brought about by the fall of the Berlin Wall on 9 November of 1989. The earliest results of this latest unification show how well it fits the traditional pattern of the last century and a half. The heart's desire of most of those who were determined to join the Federal republic was not "more democracy". Other motives prevailed. First, there was the (understandable) desire to catch up materially with the western standard of living, which had been denied residents of the GDR for decades simply because it had been their lot to fall into the Eastern bloc. And it must be said, without arrogance and with sympathy, that this motive had been on the agenda in the West as well, the Chancellor of All the Germans promising to all Germans "blooming landscapes" (in the East) without higher taxes (in the West). "No Germans in the East", the chancellor promised, "will be worse off than their fellow citizens in the West".

Another motive (or side effect) of this unification did not show up so clearly at first, and was loudly denied by a unified Germany whenever foreigners mentioned it. This was the inclination to rebuild the national state, including the emotional need to protect it against all that is ethnically different. This type of nationalism is premodern (but fundamentally German), in the sense that it views the state primarly not as a constituted society but as a territory within legally protected borders - borders that barricade an ethnic or linguistic community against those who do not belong. If the establishment of universally valid legal relationships - "human rights" - had been the chief motive for the revolution of 1989, there would be no reason why those who sought that goal would turn so aggressively and with such obvious racism against those who come to Germany now, drawn by exactly the same desire.

Our historical conscience obliges us to be extremely sensitive about basic civil rights and their normative priority over questions of origin. If civil rights exist at all, they must be valid always, for everyone. Thus, article four of the revolutionary constitution of 1793 guaranteed to all adult foreigners, after one year of residence in France, not only the right to live there, but all rights of citizenship.

The results of a poll taken by the Institute for Applied Social Research has confirmed my sense that nationalistic motives overshadowed legal considerations in the recent German unification. Seventy-eight percent of East Germans polled condemned the asylum policies of the Federal government (before the four-party compromise) as much too permissive. The Germans - and by the way, who are they? given that, after several millennia of migration by miscellaneous, ethnically diverse peoples, today's Germany is a melting pot par excellence - the Germans would like to keep to themselves, which is why anyone who lives outside our borders but claims to be an "ethnic German" is welcome among us without question. Some have recently fallen back into Carl Schmitt's division of human beings into friends and enemies, a distinction that Socratic ethics taught us to overcome 2,500 years ago, and Jewish universal morality, with its impressive commandment of hospitality, forbade even earlier.

The fact that the terms political state and ethnic group can be so easily confused is due to some peculiarities of the semantic history of the words Volk and Nation in German usage. Since the middle of the eighteenth century, Volk has meant primarly a community sharing a common origin, language, and culture. This definition does not include the juridical connotation of an established (political) society, a "nation".⁵ Volk acquired an association with class struggle when the word came to refer to the mass of those governed, in contrast to the governing class, with no recognition of social strata within class of the governed. In short, Volk connotes the "lower classes" (in that strange undifferentiated plural that is characteristic of the imprecise class-awareness of the German bourgeoisie). The concept Volk compensated for this lack of precision by substituting its own semantic dowry, which, in contrast to the semantics of the French word peuple, was from the very beginning synthetic (Volk sometimes even has a religious meaning). The universality - or, rather, commonality - of the Volk consists not in the stratified equality of unrelated, indistinguishable, and homogeneous monads possessing identical rights, but in the fact that the members of this class are or see themselves as characterized by solidarity and mutual understanding.⁶

Kant was among those who saw early and conceptualized clearly the difference between a community of people with a common origin (ethnocentrically self-defined) and the population of a state. Considering the French Revolution, he writes of "the recent total restructuring of a great people [Volk] into a state [Staat]".⁷ Here the Volk, as a cultural or linguistic community, is distinguished from the state as a nation, in which loyalty to the common constitution is the criterion of membership. Of course, Kant also advocated the merging of national states into a commonwealth [Völkerbund], in the context of which all wars would be civil wars. Schelling reconciles these two positions:

It is impossible for even an individual state's constitution to endure, no matter how perfect it may be in concept, without the existence of an organization greater than the individual states, a federation of all states, which mutually guarantee each other's constitution; and this general mutual guarantee is in turn not possible unless, first of all, the principles of a true legal constitution are generally accepted, so that individual states share a single interest in maintaining the constitutions of all , and secondly, unless these states subject themselves to a single common law, just as, previously, individual persons did in constituting the individual state, so that the individual states now belong to a "state of states", and if quarrels arise among the members, there now exists a general Areopagus of the people, consisting of representatives of all civilized nations, and able to direct the might of all its members against any individual rebel state.⁸

But Germans have seldom distinguished as clearly as Kant or Schelling id between a community of ethnically related people and the citizens of a state. This debility was deepened by the fact that in Germany, in contrast to France, for example, there was simply no historical or political necessity to distinguish between a politically constituted people and a group of people with something in common, for the German people never achieved a constitution by their own efforts. They had no impetus to reject Jacob Grimm's definition of a people (Volk) as "the total community of those who speak the same language". The dangers of stressing social integration over political and legal association are well known: "patriotism" will amount to a declaration of emotional attachment to a Volk, with concomitant separation from alien ethnic groups.

Patriotism as allegiance to a constitution is foreign to the German masses - of this, there are many sad, even horrifying proofs. If the Germans in general, and especially those in the new federal lands of eastern Germany, had been concerned with the establishment of legal rights, they would have to treat asylum seekers as brothers and sisters, and would be eager to share with them their newly won freedom, which, after all, would be by their own definition ("human rights") universal. Such Germans would recognize that what the asylum seekers desire is what they themselves desire. Instead: "Germany for Germans". The ethnic self-identification of the new citizens of the Federal Republic reached its apex and its nadir in the grotesque scandal in which the CDU's Karl-Heinz Schmidt identified Ignatz Bubis, because he is a Jew, as a citizen of Israel ("Your homeland is Israel. Is that acceptable?"). Schmidt's remarks belong to the tradition of the Nazi newspaper Der Völkische Beobachter, which on 8 November 1938 asserted: "It is intolerable that within our borders hundreds of thousands of Jews control entire streets, occupy pleasure resorts, and as foreign landlords pocket the rent paid by German tenants". This identification of German citizens of the Jewish faith as foreigners, taken together with Carl Schmitt's division of all people into friends and enemies, makes the best case for how abysmally and catastrophically enlightenment has failed in Germany.

The climate of ideas that has arisen since the recent German unification is unpleasantly familiar. When the alternatives are put very bluntly, "unity without freedom" seems preferable to "freedom without unity". "The only kind of patriotism that does not alienate us from the West", says Habermas, "is constitutional patriotism. Unfortunately, a bond anchored in commitment to universal constitutional principles was possible in the German ethnic community only after, and as a result of, Auschwitz". The violent denial of history after the recent unification reveals the strength of the historical ballast that weighs upon us Germans and that must be not merely regretted but someday removed.

Last year, in the Paulskirche, the mayor of Frankfurt spoke the remarkable words, "Auschwitz is Germany's past, present, and future. The great peace with the perpetrators, which Ralph Giordano so vehemently opposed last year in the Paulskirche, cannot exist either in a united Germany". He ought to have said: should not exist, for no one can deny that national unification has in fact provided another motive for freeing the collective amnesia. None of which is changed by our knowing that terrorism exists in the old as well as in the new federal lands (Mölln already seems to be in the West), nor by the revelation that terror in the east is in part directed from the West.

Anyone who studies the comprehension of democracy evinced by our government officials will be tempted to despair completely. Instead of advocating enlightenment (which could begin in their own brains) and showing constitutional patriotism (especially in regard to basic rights struggled for with such difficulty), our leaders fell over each other in their eagerness to extend the mantle of "understanding" to the brutality of our misled youth. Certainly, understanding was called for; our criminal law is based not on revenge but on resocialization (though I would not maintain that the law always achieves its goal). Still, when the first reaction to mobs shouting "Death to Jews" is an appeal for understanding for the social difficulties of young people in eastern Germany, this strikes me as a symptom of a repressive and perverse tolerance. As long as the lives of foreigners are threatened and asylum seekers are murdered on public streets with no intervention of onlookers, reason dictates that what is needed is not understanding but the most uncompromising demonstration of the power of the state. Once the aggressors are rendered harmless and violence on the streets has abated, then will be the time for constructive understanding. Understanding for the new right is truly touching - far more lively and spontaneous than any desire of the Germans' good heart to understand the needs of the Third World or of Eastern Europe, where the asylum problem had its origin in the gigantic political error of imperialism (whose aftereffects are now being visited upon its perpetrators). When terror came from the left, who heard calls for understanding rather than for police power? And who believes there is no method behind this uneven treatment?

III

It is a commonplace of democratic theory, from Rousseau to Schlegel to Habermas, that majority approval of autonomously shaped proposals is not a sufficient criterion for determing their correctness. Democracy is hampered by a structural problem: it cannot unconditionally acknowledge the numerical majority (la volonté de tous) as the source of legitimacy for the power of the state, nor can it attribute emirical reality to the true source of legitimacy (la volonté générale). The general will is an ideal, and hence infallible, standard, but the procedures by which the will of the individual citizen is formed and expressed are fallible. Thus, significant differences can arise between the sovereign generality and an actual majority of citizens. This "infinite gap" can be closed, accordind to a formulation in Schlegel's essay on republicanism (1796), only by the "fiction of an empirical will as surrogate for the absolute general will which is conceived a priori". That "legal fiction", however, can only function as the guarantee of legitimacy so long as it is not misunderstood as a positive reality but is viewed instead as continuously approaching the ideal.

Hence any single expression of majority will can be erroneous, legitimized only provisionally by acknowledgment that it is subject to the general will. The "empirical will" anticipates its ideal justification by means of a generally binding agreement which Schlegel calls a "categorical political imperative". While a democracy can mobilize numerical majorities to offend against this imperative (as many politicians are doing now with respect to German xenophobia), it is impossible in principle for the democratic state to do so. There are basic rights, the infringement of which must immediately, ipso facto, delegitimize the act in question. The only rigorous prohibition contained in Rousseau's Contrat social is that against renunciation of freedom - against, that is, deracination of the source of constitutional legitimacy:

But the body politic or the sovereign, owing their existence solely to the sanctity of the contract, can never be obliged, even by others, to do anything contrary to that fundamental law, so as to eliminate any part of itself or to submit to another sovereign. To violate this law, on which its existence depends, is to annihilate itself, and what does not exist produces nothing.⁹ (emphasis added)

In the same vien, Schlegel wrote: "The only thing that is sacred is that which is infinitely vulnerable, like freedom and equality: the general will".¹⁰ If it were otherwise, the existence of democracy would be made dependent on the majority interest of those involved - one can conceive the (all-too-German) possibility that a people might freely, in a formally correct procedure, those to abolish democracy. In that case, to quote Schlegel again, the society would abolish the very principle that makes the decision "democratic", and thus "abolish its own foundation, and hence itself".¹¹ In our time, it is Habermas above all who was clarified the limits of an electorate's power. There should no longer be any need to urge consensus on this point: that the only social norms that may be considered valid are those which, under testing conditions that are ideally structured are universally accessible, cannot be refuted by rational arguments.

These are clichés, of course, in constitutional democracies. But Germans who think in constitutional terms are uncharacteristic exeptions to our prevailing understanding of democracy. Today, a radical affirmation of the immutability (the so-called Eternity Guarantee) of the catalogue of rights in our "free and democratic Basic Law" may be punished as an attack on the state. Obviously, much has changed since enactment of the Basic Law. Much, indeed, has changed in 1992 and 1993 - last year, in an issue of Die Zeit, Habermas wrote: "By chance I had to leave Germany before Rostock and Petersberg. When I returned after being away for a month and a half, it was no longer recognizable". In any case, we have reached the point where a CDU politician, a Frankfurt city councilman, expressing "sorrow" that my students are exposed to a professor who "despies humanity", can suggest in a letter to the editor that I be forbidden to teach.¹² The CDU numbers me (according to the Frankfurten Allgemeine Zeitung of 11 November 1992) among the anarchists who threw stones at the federal president during the great demonstration in Berlin. In reality, I am a constitutional conservative. I spoke at the Paulskirche out of gratitude for a Basic Law that, in my opinion, needs special protection. The substance of the Basic Law, according to Supreme Court Justice Rothkegel and former Supreme Court Justice Simon, and according to Amnesty International as well, is damaged when the right of asylum is abolished or diluted because of an opportunistic accommodation to the vox populi.

The arguments of Social Democrats and aging former leftists seem to me hypocritical. For example, Peter Schneider wrote last year in Die Zeit that the current debate is "not about the abolition of the right of asylum, but about the abolition of an abuse of that right".¹³ Not to treat the arrival of 500,000 refugees as a "problem", he said, is "negligence"; indeed, this influx should be treated as an "emergency". I do not deny the problem caused by the large number of refugees (though it is worth observing that this number - 500,000 - corresponds, with poetic justice, to the number of Jews living in Germany at the beginning of Nazi rule). What bothers me is the fact that the number as such should be the motive for undermining a basic right, imlying that a constitutional guarantee will be upheld uncompromisingly only so long as it costs nothing to do so, only so long as no one actually makes use of it. The next step in this logic of accomodation, again born of some emergency, will be the final abolition of the asylum guarantee. Here too it will be validly claimed that the "mothers and fathers of our Basic Law" did not forsee the excessively large number of current refugees. But let us follow this argument - in our imagination - to its logical conclusion: Were not the 170,000 Jews who emigrated from Germany befoe March 1938 so numerous that neighboring countries, even though they guaranteed the right of asylum, could not be realistically expected to integrate them? In fact, as early as March 1938 Switzerland closed its border to refugees and cruelly sent Jews back to Germany, using exactly the same argument that is adduced now among us as grounds for changing the constitution: the large number. The canton of Geneva tried for years to expel Robert Musil, on the grounds that the Third reich was not persecuting writers - how dare we condemn the "J" on the passports of German Jews as a barbarity, when we are ourselves about to walk the same path?

There remains one objection to the right of asylum that still requires examination: that this right, numbers aside, is continually abused. Apart from the fact that flight from war and torture in Bosnia or from starvation in Somalia constitutes (for those who raise this objection) a case of abuse, the fact that a law is being abused does not mean that the law must be abolished or even changed. To make this assertion would be a classic example of a category mistake. It would be like suppressing the word and concept morality, or forbidding its use in schools, because almost everyone uses it incorrectly. Let us be clear about one thing: Basic rights are not "rights which peoplehave in principle" but which can be withdrawn from us, or by us from others, when circumstances change. Basic rights, if they exist, are unconditionally valid laws that cannot be changed in any imaginable situation. For such laws, humanity has fought bloody battles for thousands of years.

The abolition of individual's right to asylum would be, simply, illegal. Article sixteen, paragraph two, of the Basic Law states: "Victims of political presecution enjoy the right to asylum". Article nineteen, paragraph two, states: "In no case may the essential content of a basic right be infringed". If the elimination of an article is no longer regarded as a change in its essential content, we are living in dark times indeed. In such times, we repress the knowledge that Germans like Willy Brandt, Albert Einstein, and Theodor Adorno, not to mention innumerable nameless emigrants, have owed their survival to the fact that the world community does recognize the principle of individual asylu. The amnesia will be complete when our political representatives are not longer able to interpret the "essential content" of the Basic Law. This condition has already been partially achieved, inasmuch as the CDU and CSU are demanding the change or elimination of the right to legal redress guaranteed in article nineteen, paragraph four, of the Basic LAw. This cannot be permitted, for the right to legal redress applies to every other right. Neither the right to asylum nor the right to legal redress can be stricken from the Basic Law without doing violence to its substance. Furthermore, article one, paragraph three, states: "The following basic rights are binding upon legislative, executive, and judicial authorities as directly applicable law". Thus any actual limitations of the right to asylum by laws or administrative procedures are unconstitutional, and here again we run up against that a pripri barrier by which the democratic constitution needs and wants to protect itself against abolition by the will of the majority. But it may now be en route to violation by the "healthy popular sentiment" of the majority, perhaps even by the representatives of the people, who think they understand their voters better than the voters understand themselves.

Amnesty International is appealing to the politicians in Bonn not to misuse the outcry against foreigners as an excuse to limit the right of asylum. The appeal is directed primarily against the suggestion of the Social Democrats that asylum be summarily denied to people from countries designated free of persecution. If this proposal were enacted, the victims of human-rights abuses would be left helpless before closed doors. Anyone who studies the documents collected by Amnesty International will see dramatic cases of injustice toward rejected asylum seekers; the lightning-fact deportations from Switzerland and Belgium are particularly significant. Moreover, it is contradictory to combine acceptance of the individual right to asylum with the exclusion of certain groups from the asylum process (as is advocated in the Petersberg resolutions of the SPD, and also by the FDP). The general secretary of the German Section, Volkmar Deile, also rejected the suggestion of the Union that the individual right to asylum, which is firmly anchored in the Basic Law, be replaced by a reference to the Geneva Convention on refugees. He said that this would "not be in accordance with the basic human right to protection from political persecution".¹⁴ However, it would be acceptable to add the recommendations of the United Nations Refugee Organization, which sets as a minimum standard an individual examination of the application for asylum, and in cases in which asylum is not granted, an appeal to an independent higher authority and the right to a residence permit while the procedure is pending. Acceptance of any person not legally convicted of fraudulent application is the standard of the constitutional state, achieved after thousands of years of struggle, and a constitutional state does not allow itself to be overpowered by passions that reside in the lowest regions of the human soul.

Our legal system is not obliged to heed numerical majorities, and our courts are not called democratic because they yield to popular will. Majority support cannot legitimize anything that attacks the foundation of what makes a constitution democratic in the first place. Granted, if injustice becomes the norm, the reserves of legitimacy that the state ideally has lose their effectiveness - and it is for this reason that I hope protest actions in Germany will prove to be passionate evidence that the situation is not, yet, hopeless.

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