The Imperfect Union: Constitutional Structures of German Unification

The Imperfect Union: Constitutional Structures of German Unification

The Imperfect Union: Constitutional Structures of German Unification

The Imperfect Union: Constitutional Structures of German Unification


In the mid-summer of 1989 the German Democratic Republic-- known as the GDR or East Germany--was an autocratic state led by an entrenched Communist Party. A loyal member of the Warsaw Pact, it was a counterpart of the Federal Republic of Germany (West Germany), which it confronted with a mixture of hostility and grudging accommodation across the divide created by the Cold War. Over the following year and a half, dramatic changes occurred in the political system of East Germany and culminated in the GDR's "accession" to the Federal Republic itself. Yet the end of Germany's division evoked its own new and very bitter constitutional problems. The Imperfect Union discusses these issues and shows that they are at the core of a great event of political, economic, and social history.Part I analyzes the constitutional history of eastern Germany from 1945 through the constitutional changes of 1989-1990 and beyond to the constitutions of the re-created east German states. Part II analyzes the Unification Treaty and the numerous problems arising from it: the fate of expropriated property on unification; the unification of the disparate eastern and western abortion regimes; the transformation of East German institutions, such as the civil service, the universities, and the judiciary; prosecution of former GDR leaders and officials; the "rehabilitation" and compensation of GDR victims; and the issues raised by the fateful legacy of the files of the East German secret police. Part III examines the external aspects of unification.


This book had its origins in a visit to Berlin in early January 1990, a few weeks after the opening of the Berlin Wall. At that point, German unification was still an uncertain prospect, and many East Germans thought that their country would continue on for some time as an independent state under a new democratic constitution. Those weeks were a period of great political excitement in eastern Germany, and it was a kind of civic education to visit highly charged meetings of new democratic organizations like New Forum and the Social Democrats (then known as the SDP), and to travel to Leipzig for one of the great Monday night demonstrations which, in past weeks, had toppled the East German regime.

For a teacher of constitutional law, this visit was also a chance to speak to political figures from across the emerging political spectrum in East Germany—as well as many other members of a newly liberated citizenry—about what they thought a new constitution should look like and what it should contain. The careful attention to difficult constitutional problems that was evident in those conversations made me skeptical of claims, later heard, that citizens of eastern Germany were somehow deficient in democratic or constitutional understanding.

When I returned to Berlin in the middle of March 1990, at the time of the first free East German election, the mood had changed considerably. By then, East German Prime Minister Modrow as well as Soviet President Gorbachev had acknowledged that German unification was inevitable. The results of the election on March 18 confirmed that view. But even so, a working group of the central Round Table was still completing its proposed draft constitution for the GDR. On that visit, I spent a day in an old villa at the edge of East Berlin, while the working group's editorial committee—with a West German advisor—put the finishing touches on parts of the constitutional draft. Again, the level of engagement and analysis was high, but in some ways these quixotic labors on a new GDR Constitution seemed to represent the last flicker of the reform movement of the previous autumn.

I returned to Berlin yet again in summer 1990, as the first State Treaty was about to go into effect. This agreement extended the western Deutsche-Mark to the east and began the official process of unification; the resulting changes were immediately apparent in the western consumer goods that appeared over a weekend in shop windows in downtown East Berlin. But even more profound changes were taking place in the lives of many East German citizens whom I had come to know over the course of these visits.

It was also clear that what had begun as an inquiry into the new constitutionalism of the GDR had turned into a project on the constitutional aspects of German unification. Because of the extraordinary pace of these changes, it . . .

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