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 A. Miller was a DAAD/AICGS Research Fellow in 2015. He joined the Washington and Lee law faculty in 2008. His teaching and scholarly research focuses on comparative law theory and methods, comparative constitutional law, German law and legal culture, and public international law. Previously, he taught at the University of Idaho College of Law and has been a guest professor in Germany.

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.