How to Kill an Idea: An American’s Observations on the NPD Party-Ban Proceedings
Russell A. Miller
Washington and Lee School of Law
Russell Miller teaches and researches in the fields of constitutional law, international law, comparative law theory and methods, and German law and legal culture. He is the author or editor of several books on international law, constitutional law, comparative law theory and methods, and German law and legal culture, including: Constitutional Places – Landmarks on the Road to German Democracy (Kunth 2025); An Introduction to German Law and Legal Culture (CUP 2024); Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair (CUP 2017); The Constitutional Jurisprudence of the Federal Republic of Germany (Duke 2012); Progress in International Law (Brill 2008); and Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (CUP 2006). His articles and commentary have appeared in respected journals and in the international media. Miller is a two-time Fulbright Senior Research Fellow. In 2021 he was awarded a Humboldt Research Prize in recognition of his research on German law and his contributions to transatlantic understanding. Miller is the co-founder of the German Law Journal and the Berlin-based Rule of Law Academy. From 2020-2022, Miller served as the head of the Max Planck Law Network, a consortium of ten world-class research institutes involving more than twenty research directors and more than 400 PhD candidates, post-doctoral reserachers, and guest researchers. He has been a regular visiting fellow at universities and research institutes in Germany, including the Max Planck Institute for Public International Law (Heidelberg), the Konrad Adenauer Foundation, the University of Münster, and the University of Freiburg. He served as a law clerk at the German Federal Constitutional Court and for Judge Robert H. Whaley of the U.S. District Court for the Eastern District of Washington. Miller has degrees from Washington State University (BA 1991), Duke University (MA and JD 1994) and the University of Frankfurt (2002). He was a DAAD/AGI Research Fellow in 2015.
How should a democracy protect itself from forces that seem intent on destroying freedom and open discourse? The German constitution (Basic Law) establishes a “militant democracy” that is prepared to take undemocratic measures to ensure that the Federal Republic does not suffer a repeat of the cynical—and ultimately murderous—rise of the National Socialists. Chief among these constitutional measures is the Federal Constitutional Court’s authority to ban political parties, a “nuclear” option it has invoked only twice in postwar German history (to ban the Socialist Reich Party and the Communist Party in the 1950s). Party-ban proceedings are exceedingly rare, but on January 17, 2017, the Court ruled to reject the recent application seeking to ban the extreme right-wing National Democratic Party of Germany. Russell Miller—an AGI non-resident fellow, law professor at Washington & Lee University, and editor of the German Law Journal—attended the hearings in the case in March and last week published an English-language photo essay at the Verfassungsblog reflecting on the historic case.
