A monograph published in Germany sheds new light on the early years of the Federal Constitutional Court. Historians describe cases of judges who had previously been linked to institutions of the Third Reich, including individuals involved in expropriations in occupied Polish territories and those cooperating with Nazi structures. “Sueddeutsche Zeitung” writes about the need to abandon the image of the Court as an institution entirely unburdened by the past.
Judges with Nazi Pasts Sat on the Constitutional Court
For a long time, the Federal Constitutional Court of the Federal Republic of Germany was regarded as an institution without judges compromised during the Third Reich. The recently published monograph revises this image of the Court as spotless. “Sueddeutsche Zeitung” published a review of the book “Transformation Through Law. The Federal Constitutional Court and the Past” by historians Frieder Guenther and Eva Balz.
The author of the review published on Monday, Wolfgang Janisch, referred to the ceremonial inauguration of the Court in September 1951. At that time, the President of the Federal Republic of Germany, Theodor Heuss, said that the Constitutional Court, founded on human rights and human dignity, was “the negation of a totalitarian state”.
Compared to other institutions in postwar West Germany, the Court does not fare badly, as noted by “SZ.” In the Court’s initial composition, 17 percent of judges had belonged to or applied to join the NSDAP. In the Federal Court of Justice – the highest court in civil and criminal matters – this figure was 31 percent, while in the Ministry of Justice it reached 50 percent.
According to “SZ,” it is noteworthy that the Constitutional Court also included “a relatively large number of individuals persecuted” by the Nazi regime, although the authors of the monograph revised their number from 24 to nine.
More interesting than the numbers are the judges’ biographies. A closer look reveals “all shades of opportunism and careerism” among legal professionals, as stated in the article.
The most well-known example is the Court’s first president, Hermann Hoepker Aschoff. Before Adolf Hitler came to power, he had been the Prussian Minister of Justice and was regarded by the Nazis as an enemy of the system. As a result, he lost his position and pension.
However, after the invasion of Poland in 1939, new opportunities opened up for the lawyer – he became affiliated with the Main Trustee Office East, which was responsible for the expropriation of Polish citizens in territories annexed by Germany. “A former opponent of the NSDAP took part in plunder in Poland”, writes “SZ”.
Aschoff’s successor, Josef Wintrich, was initially considered politically reliable by the authorities of the Third Reich. Only in 1940 did a local NSDAP unit block his promotion. Wintrich began cooperating with “Lebensborn” – an institution that facilitated the adoption of children taken from their parents in Eastern Europe into German families. Files indicate that Wintrich acted “cooperatively and uncritically”, historians write.
The most prominent figure in this context is Constitutional Court judge Willi Geiger. His doctoral thesis concerned a press law introducing the “Aryan certificate” requirement for journalists. During the war, he worked at a special court in Bydgoszcz. He was involved in at least five death sentences, including one against a Pole deemed a “public pest”, according to “SZ.” No Constitutional Court judge lost their position after links to the Third Reich system were revealed, the article’s author emphasized.
The monograph’s authors write that cooperation between former Nazis and those persecuted by Hitler was possible thanks to “the silence of the latter about the past”. Opponents of the Third Reich “refrained from bringing charges against their persecutors”. No judge, after taking office at the Court, applied for victim status. The exception was Gerhard Leinbolz, who survived the war in exile in England. A note prepared by the Court’s president described him as “the only Jew in the Senate, Bonhoeffer’s brother-in-law (an Evangelical clergyman linked to the plotters against Hitler, who died in the concentration camp in Flossenbürg – editor’s note), an émigré, playing the role of a martyr”.
According to “SZ,” the publication of the monograph does not require rewriting the history of the Constitutional Court. Its achievements – breaking with the remnants of the Nazi state and advancing civil liberties – remain valid. However, it is necessary to abandon the thesis that this was accomplished by a court without blemish and unburdened by the past, the conclusion of the “Sueddeutsche Zeitung” article states.