When Loyalty to the Constitution Suddenly Becomes Political Interference

Some demands sound perfectly reasonable at first. Neutrality, for example. A lovely word. It promises objectivity, impartiality, and the reassuring certainty that nobody will be favoured or disadvantaged. Who could possibly object to that?

Well, it depends on what we mean by neutrality. And, more importantly, who is demanding it from whom.

Neutrality can mean that the state must not favour any political party in an election. It can mean that teachers must treat their students fairly, regardless of their political views. Or that police officers must not exercise their powers according to personal sympathies. All important principles, and perfectly reasonable ones at that.

Lately, however, neutrality sometimes seems to have acquired an additional meaning: that people should preferably refrain from speaking up about human dignity, democracy, or fundamental rights whenever someone feels politically disadvantaged by it. One might almost think the constitution was merely an informal expression of opinion that the state circulated some years ago and from which it should now, as a precaution, distance itself.

When a teacher explains in class that human dignity is inviolable, one might assume they are simply doing their job. After all, that is what the very first article of Germany’s Basic Law says. It is hardly some daring personal opinion the teacher picked up over the weekend at a clandestine gathering of constitutional enthusiasts.

And yet, precisely this can be turned into an accusation: the teacher is not being neutral. They are taking a position. And taking a position is, of course, unacceptable. At least when it is a position that displeases the wrong people.

Perhaps teachers should therefore be a little more cautious in future:

“Human dignity is inviolable. However, there are other views on this matter which, in the interests of balance, we must also take into account.”

This could be followed by a little group exercise. Half the class collects arguments in favour of human dignity, the other half against it. At the end, everyone votes. After all, democracy needs to be practised.

Anyone who recognises the absurdity of this scenario has already understood the problem.

In debates of this kind, people often invoke the Beutelsbach Consensus, a set of principles governing political education in Germany. It prohibits teachers from overwhelming students with their own political views and requires genuinely controversial issues to be presented as controversial. That makes sense. Political education is supposed to enable people to think independently, not simply repeat what their teacher says.

But the Beutelsbach Consensus certainly does not require teachers to treat human dignity as a matter of personal taste. The principle of presenting controversy is not an instruction to hunt down the most hostile possible position on every fundamental right, just to ensure that nobody feels left out. It requires questions that are genuinely disputed in society and academia to be presented as such.

And it most certainly does not require teachers to apologise in advance for the constitution’s existence whenever they explain it.

Incidentally, Germany’s constitution is called the Basic Law not because it belongs on the bottom shelf of the bookcase. It forms the legal foundation of our political system. Laws, regulations, and government actions must all be measured against it. It is, in a sense, the foundation of the house in which we all live.

Naturally, we can argue about the colour of the walls, the furnishings, the service charges, and whether bicycles should be allowed in the stairwell. We can even demand renovations.

But anyone who declares that the foundations must go because they dislike the entire building should hardly be surprised if the other residents are less than enthusiastic. Especially if they insist that everyone else must help with the demolition. Anything less would, of course, be undemocratic.

The authors of Germany’s Basic Law had good reasons for placing certain principles beyond the reach of ordinary parliamentary majorities. They knew what could happen when democratic procedures were used to abolish democracy itself. Fascist rule had collapsed only four years earlier. Its crimes and their consequences were visible everywhere. The memory of them was not a historical footnote but an immediate reality.

That is why Article 79(3) of the Basic Law, together with Articles 1 and 20, protects fundamental principles such as human dignity, democracy, and the rule of law from being abolished through constitutional amendment. Even an overwhelming parliamentary majority cannot simply decide that certain people will no longer possess human dignity.

For some, this may represent a regrettable restriction on their political freedom of action. But democracy is not a self-service store where the majority gets to decide which minority must go home without its fundamental rights today. Human dignity, after all, also applies to those whom some people would most like to deny it.

And because these principles are not merely decorative features of our political system, those who work for the state are explicitly required to uphold them.

When I took my oath of office with the German Federal Railways at Frankfurt Central Station in 1990, I pledged my loyalty to the constitution of the Federal Republic of Germany. I still remember being required to respect and defend it to the best of my knowledge and conscience. Not the federal government, not any particular political party, and certainly not their respective political agendas. The constitution. A fairly straightforward distinction, one might think.

Apparently, it has become necessary to explain it again.

Civil servants serve the people as a whole, not a political party. They are required to uphold the constitution and, within the scope of their official duties, to support the preservation of the free democratic constitutional order. This is not an optional recommendation for days when there happens to be little else to do.

A police officer is supposed to protect everyone’s rights, including those of people whose views they personally reject. A teacher is supposed to help young people think independently and understand the foundations of democratic society. And a public official is supposed to perform their duties according to law, not according to whichever way the political wind happens to be blowing.

Strangely enough, fulfilling precisely these obligations is sometimes portrayed as a failure of neutrality.

Imagine a police officer responding to a crime by explaining that they would rather not get involved. After all, there are different social perspectives on offences against property. The victim considers theft reprehensible, while the thief evidently has a somewhat more generous understanding of the transfer of ownership. As a neutral public servant, the officer could hardly be expected to take sides.

Presumably, someone would soon explain to that officer that they had misunderstood their job.

Yet when it comes to human dignity, the matter suddenly becomes more complicated.

In reality, the distinction is fairly simple. Being required to uphold the constitution does not mean having to approve of every government decision. Public servants may criticise laws, advocate political change, and consider a government incompetent, provided they respect the particular duties of their office.

That, after all, is one of the essential differences between a democracy and a state in which those currently in power declare their own political views to be the only permissible ones.

An oath of office does not bind someone to a government, much less to a particular party. It binds them to the constitution.

The fact that this distinction occasionally causes remarkable difficulties of comprehension is not an exclusively German phenomenon.

At the Munich Security Conference on 14 February 2025, US Vice President JD Vance criticised Europe’s approach to freedom of expression and political opposition. Among other things, he spoke out against political “firewalls”, without explicitly naming the AfD, Germany’s Alternative for Germany party, in that context.

There is certainly room for serious debate about the limits of free speech. American and German constitutional traditions place different emphases on the issue. Such a debate would be entirely worthwhile.

But two things should not be confused: the right to express a political opinion and the supposed right to have other political parties cooperate with you. Refusing to cooperate with a party does not deprive that party of its freedom of expression. Political cooperation is not a delivery service where placing an order entitles you to have it brought to your door.

Nor has American history been one uninterrupted celebration of free speech. That does not invalidate criticism made today, but it does remind us how carefully we must distinguish between protecting democracy and suppressing unwelcome beliefs.

Charlie Chaplin could have told us a thing or two about that.

The actor who made millions laugh while also showing them how cruelly society could treat its most vulnerable members attracted the attention of the FBI. J. Edgar Hoover regarded his political views and associations with considerable suspicion. When Chaplin travelled to Europe in 1952 for the premiere of his film Limelight, his existing permission to re-enter the United States was revoked.

Returning would have required a fresh review by the American authorities. Chaplin eventually settled in Switzerland.

An artist who dared to criticise social injustice was apparently a matter of national security.

Albert Einstein had a somewhat similar experience. The FBI also compiled extensive files on him. His political beliefs, his commitment to fighting racism, and his criticism of nationalism and the arms race made him a figure of suspicion.

Just consider that for a moment. A man whose scientific discoveries fundamentally transformed our understanding of the universe became the subject of government surveillance and extensive investigative files because he also had ideas about how human beings ought to live together.

Perhaps he should have stuck to the theory of relativity. That was complicated enough already.

Bertolt Brecht, Hanns Eisler, and numerous other artists and intellectuals likewise discovered how unpleasant life could become when political beliefs attracted the suspicion of the state.

Yet the decisive question should never have been whether these people were communists. Even if they had been, that alone would not have justified political persecution.

An opinion does not become a crime simply because someone considers it wrong. And a society does not become freer by telling its citizens which political beliefs they are permitted to hold.

The underlying notion of freedom could be summed up in one simple sentence: Everyone has the right to agree with me.

Those who choose not to exercise that right must, however, expect certain inconveniences.

The history of anti-communist persecution and surveillance in the United States demonstrates how quickly the protection of a free society can turn into the surveillance of its critics. It should also remind us that defending democracy must itself remain subject to the rule of law.

Not every radical opinion is a crime. Not everyone who criticises the existing order is an enemy of the constitution. And not every uncomfortable political position justifies action by the state.

That is precisely why it is important to distinguish between holding a belief, actively organising to undermine the democratic constitutional order, and committing specific violations of the law. A democracy capable of defending itself is not a licence to police people’s thoughts.

This also applies to the question of whether someone with extremist convictions can hold public office. Anyone who actively works to abolish the free democratic constitutional order enters into a fundamental conflict with the duty to uphold the constitution. Whether this warrants disciplinary consequences, however, must be determined according to the rule of law and the specific circumstances of the case.

Otherwise, we may eventually find ourselves resorting to the very methods against which we were supposedly trying to protect ourselves.

This distinction matters beyond political parties and public officials. Artists, journalists, and other citizens must also be free to criticise political movements without suddenly being accused of violating some supposed duty of neutrality. Unlike civil servants, independent artists are not subject to a general constitutional loyalty obligation arising from public employment. Even receiving public funding does not turn them into government employees obliged to remain politically silent.

It would be a remarkably one-sided understanding of freedom if one side were allowed to say whatever it pleased while the other was expected to keep quiet in the name of neutrality.

Yet even where everyone enjoys the same freedoms under the law, that does not mean everyone can exercise them under the same conditions.

This reminds me of an observation by the French writer Anatole France. As he pointed out, the law, in its majestic equality, forbids rich and poor alike from sleeping under bridges, begging in the streets, and stealing bread.

A wonderful observation. And a bitter one.

For it shows how easily formal equality can be confused with actual justice.

Freedom of expression, too, belongs to everyone in principle. But people’s opportunities to exercise it are far from equal. Someone with money, influence, and a large audience can spread their views under very different conditions from someone who fears losing their job the moment they speak out.

That is why it is not enough merely to proclaim freedom of expression with great ceremony. We must also consider the social conditions under which people can actually exercise it. A right that only the powerful can exercise without serious consequences may belong to everyone on paper. In real life, however, things look rather less majestic.

And that brings us back to neutrality.

A democratic society does not depend on everyone holding the same opinions. It depends on people being able to debate their different interests, experiences, and beliefs without denying one another their fundamental rights.

That requires neither agreement on every law nor approval of every government. A living democracy needs criticism, dissent, and the freedom to question existing arrangements at their very foundations.

What it does not need is the notion that human dignity is just another political position whose validity can be renegotiated after every election.

You may criticise the Basic Law. You may demand amendments, provided the constitution permits them. You may be furious with politicians, complain about public authorities, and wish the government would go to hell. You may even claim that everything was better in the old days. Although people were already making that claim in the old days.

But anyone who demands that teachers, police officers, artists, or other citizens remain neutral in the face of attacks on human dignity is confusing impartiality with indifference.

Teachers must not discriminate against students because of their political views. Police officers must not treat citizens less favourably because of their beliefs. The state must not abuse its power to tilt political competition in favour of those currently governing. These are all essential requirements.

But none of them implies that the constitution may only be defended in whispers.

Perhaps, then, the next time someone demands neutrality, we should begin with a very simple question: neutrality towards whom? Towards political parties, individuals, and competing political interests? Or towards the rights that make a free society possible in the first place?

Because anyone who demands neutrality in the face of violations of fundamental rights is not necessarily asking for impartiality.

Sometimes, they simply want to make sure nobody argues with them.

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