MICHEL MARTIN, HOST:
The biggest opposition party in Germany is the nationalist anti-immigration Alternative for Germany party. It's a party that's been labeled as extremist by the country's domestic intelligence agency. The agency is now allowed to tap party members' phones and hire informants to monitor them to ensure they're not a threat to Germany's democracy. Vice President JD Vance and Secretary of State Marco Rubio have criticized the move, calling it, quote, "tyranny in disguise." But it is allowed under the German constitution, a constitution that the United States helped shape. NPR's Rob Schmitz has more.
ROB SCHMITZ, BYLINE: September 1946, President Harry Truman's secretary of state, James Byrnes, takes the podium in Stuttgart, a city ravaged by war and occupied by U.S. forces.
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JAMES BYRNES: We do not want Germany to become the satellite of any power or powers or to live under a dictatorship, foreign or domestic.
SCHMITZ: This was later called the Speech of Hope, and in it, Byrnes signaled to his German counterparts that the U.S. was expecting them to draft a constitution that would rigorously protect democracy, human rights and individual freedoms.
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BYRNES: The American people hope to see a peaceful and democratic Germany become and remain free and independent. The American people want to return the government of Germany to the people of Germany.
SCHMITZ: But the American people had strict terms.
RUSSELL MILLER: One point was nonnegotiable, and that was that the new German constitution would be a strongly federalist regime.
SCHMITZ: Russell Miller is a law professor at Washington and Lee University and author of "Constitutional Places," about the history of Germany's constitution. He says the U.S. insisted Germany become a federal state, one where power was decentralized.
MILLER: So it has that significant advantage of splitting government authority, splitting state power so that no single entity, no single actor can utilize all of state power at any one time.
SCHMITZ: Miller says U.S. General Lucius Clay, who administered occupied postwar Germany, wanted to prevent the return of a dictator like Adolf Hitler.
MILLER: And we're going to constitutionalize and entrench in the constitution the tools we need to prevent that from happening again. And one of the distinct elements of this new postwar constitution is a thing the Germans refer to as militant democracy.
SCHMITZ: This means a democracy that fights any power that would threaten it.
MILLER: There's code built into the constitution that allows the German state to act in illiberal ways in order to protect liberalism and constitutionalism, to protect democracy.
SCHMITZ: This somewhat paradoxical illiberal power is wielded by Germany's Federal Office for the Protection of the Constitution, known in German as the Verfassungsschutz. Earlier this month, the office labeled the Alternative for Germany party extremist, giving the office special powers to surveil the party, which holds 151 seats in Germany's parliament.
MAXIMILIAN STEINBEIS: But it is a domestic intelligence service. That's what it does, and it provides intelligence for the government about extremists.
SCHMITZ: Maximilian Steinbeis is founder of the Verfassungsblog, a Berlin-based forum for constitutional law. Steinbeis says that while embedding a domestic intelligence service into the government to protect Germany's democracy may have looked good on paper, in practice, it's been clumsy and at times ineffective. The agency in charge of domestic intelligence has at times in recent history itself been infiltrated by extremists. Steinbeis says it's risky to believe the powers enshrined in the constitution will protect the constitution. Only the level of people's respect and education of their constitution are able to do that, he says.
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SCHMITZ: And the best place in Germany to educate oneself about the constitution is here in Frankfurt, in what's known as the IG Farben building.
NADINE DOKTOR: Now it is the Goethe University. But before the Goethe University moved in here in 2001, it housed the headquarters of United States Army in Europe.
SCHMITZ: Nadine Doktor of the Fritz Bauer Institute gives a tour of this building, one that has undergone a few baffling reincarnations. It was originally built for IG Farben, a German pharmaceutical conglomerate that during World War II, developed Zyklon B, the gas that the Nazis used to kill millions inside its concentration camps. After the war, the U.S. Army based its headquarters here. And in 1948, the heads of the Western German states were gathered here in what was called the Eisenhower Room and ordered to draft a constitution. But when they did, Doktor says, the Western German signatories were nervous about what to call this new constitution because of the Soviet occupation of the eastern part of the country.
DOKTOR: Because they actually did not want to give up the eastern part of Germany, and they hoped for a reunification. And therefore, they did not, name it constitution. So they call it Grundgesetz.
SCHMITZ: Grundgesetz means basic law. The name constitution seemed too permanent at the time. But after reunification in 1990, Germany's government decided to stick with Grundgesetz. It's not known exactly why, but up until then, the document was serving its purpose. And according to at least a few scholars, this American-influenced basic law wasn't broke. So why fix it?
Rob Schmitz, NPR News, Frankfurt. Transcript provided by NPR, Copyright NPR.
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