Can the German government ban the AfD?

Interpreting Article 3, Article 21, and Section 86a

An alleged meeting between Martin Sellner, former leader of ‘identitarian’ youth group Generation Identity in Austria, and senior members of Alternative für Deutschland (henceforth AfD) has prompted renewed calls for the German government to ban the insurgent right-wing populist party. ‘Extremist’ political parties have been banned before in Germany, but the sheer scale of the AfD’s popularity means that such a decision would nonetheless be unprecedented: the AfD is currently polling second only to the CDU, averaging 20-25% of the vote nationally and surpassing 30% of the vote in most former East German states.

While details of the meeting are scarce, it supposedly discussed a ‘remigration’ plan. This involved using a mixture of ‘carrot and stick’ incentives to ensure the voluntary and/or involuntary emigration of asylum seekers, foreign nationals, and certain citizens of German nationality but foreign heritage whose behaviour and values did not align with the rest of German society. It seems that some people within the first two categories would be subject to forcible deportation, particularly those with a criminal or extremist history. In addition to this, the welfare payments that currently sustain much of the recent migrant population at German taxpayer (meaning mostly ethnic German) expense — the Federal Government spent an estimated €27.6 billion in 2023 alone on a variety of benefits and programs for asylum seekers, with costs projected to remain constant for at least the next ten years — would be repurposed to pay migrants to return to their country of origin. German passport holders who are considered to be ‘unassimilated’ would also be offered subsidies to leave. The government would also prohibit a variety of foreign cultural practices — such as ritual slaughter — to further encourage emigration. It was also alleged that a ‘model colony’ somewhere in North Africa might receive some of the returnees.

What’s initially striking about the plan is how anodyne many of the discussed policies actually are. As many readers of Pimlico are probably aware, Denmark already makes the sensible cost-benefit calculation of paying asylum seekers to leave. It also places a limit on the number of non-ethnic Danes in residential areas to prevent ghettoisation. Even if one regards Denmark as a country with an exceptional cross-partisan political culture focused on demographic stability and integration, many of the other policies discussed are currently in vogue across much of Europe: in 2023, the Swedish government contemplated a law to deport criminal, extremist, or unemployed asylum seekers; the Netherlands is currently projected to have a right-wing government that will adopt similar policies; and France already bans the niqab at large, and bans all religious clothing and symbols in schools. So why has this discussion provoked such a visceral reaction amongst German leftists?

The meeting — which can’t even be independently verified — has prompted breathless accusations from the legacy German press that the AfD wants to deport ‘millions’ of people, simply because of the colour of their skin. According to the BBC, 300,000 people have taken to the streets in order to defend ‘democracy’. Senior members of the SPD and the Greens, two of the three parties currently represented in current German Chancellor Olaf Scholz’s Cabinet, have also openly supported a ban.¹ This rhetoric has been partly spurred on by last month’s Federal Constitutional Court (Bundesverfassungsgericht) decision to prohibit state funding to Die Heimat — the successor to the far-right (and allegedly neo-Nazi) nationalist party of long-standing, the NPD (Nationaldemokratische Partei Deutschlands) — for six years, on the basis that it disagrees with Germany’s current democratic political order.

But while it is plausible to argue that Die Heimat, which hails from an openly ‘blood and soil’ and anti-BRD nationalist political tradition, could or should be banned under current law on the basis that it is ‘anti-democratic’, on what basis could the same be said of the AfD — which, by historical standards, would have been considered well within the bounds of the traditional German centre-right, and nowhere even close to the fringes of political debate? To understand how we got here, it is important for us to examine the legal mechanisms by which the Federal Government has sought to police the outer remits of right-wing — and, to some extent, left-wing — political debate in Germany since the collapse of the Third Reich.

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Article 21 of the Basic Law (Grundgesetz) of the Federal Republic of Germany (Bundesrepublik Deutschland, BRD) — which is effectively the codified constitution of the (formerly West) German state — allows for the free formation of political parties, but also states that their internal organisation must conform to ‘democratic principles’. Section 86a of the German penal code (Strafgesetzbuch) further prohibits ‘the use of symbols of unconstitutional and terrorist organisations’. These laws were first conceived in early post-war West Germany, at a time when the Federal Republic still seemed dually threatened from the far-right and the far-left: from residual National Socialist activity and from renewed Communist activity. These laws were thus intended to prevent any political party, far-left or far-right, from undermining the fledgling Republic.

It’s important to also note that Article 21 establishes a somewhat unique, quasi-constitutional status for political parties — they are not just organisations, much like any other, that can exist as a logical consequence of freedom of association. They are more than that: they are defined as public entities ‘involved in the formation of the will of the people’. While this helps ensure that party organisations are granted special privileges, like access to state funding, it also means that their operations are subject to greater legal and political oversight. Article 21 further states in its third clause that parties which are oriented towards ‘the undermining or abolition of the free democratic order… shall be excluded from state funding’. As such, even if an outright ban is deemed too radical a step, the Federal Government — as demonstrated by the aforementioned case of Die Heimat — can also seek to undermine parties by depriving them of public financial support as one marginally more subtle strategy of regulating political discourse.

These laws laid down the foundations for the new West German ‘defensive democracy’ (Streitbare Demokratie). The first victim, banned in 1952, was the neo-Nazi and third-positionist Socialist Reich Party (Sozialistische Reichspartei Deutschlands, SRP) — led by the infamous Otto Remer, the Wehrmacht officer who had helped suppress the attempted coup against Adolf Hitler in July 1944. The Communist Party of Germany (Kommunistische Partei Deutschlands, the KPD) was next, banned in 1956. While these two parties were the most famous — in that both were the main representatives of powerful historical political movements in Germany, and both had Bundestag representation — a variety of other minor far-right parties have been prohibited from time to time since then. But none of this seems to directly relate to the AfD, which aggressively positions itself as a defender of parliamentary democracy and Western civilisation, and very firmly situates itself within the conservative (as opposed to the radical) nationalist political tradition that was established in West Germany after the end of the Second World War.

After all, the AfD was originally founded in 2013 as a breakaway party from the indisputably mainstream CDU; and, moreover, it was primarily founded not as an anti-immigration party, but rather as a ‘soft’ Eurosceptic party that stood in opposition to the German- and CDU-supported bailouts of Southern Europe. And while political commentators frequently make reference to a ‘rightward’ shift of the AfD in the wake of the 2015/16 Migrant Crisis, it would be more accurate to speak of how Germany’s supposed ‘centre’ rapidly shifted to the very fringes of the far-left when Angela Merkel’s government indiscriminately invited millions of predominantly male migrants from the Middle East into the country. As such, while there is no doubt that the AfD became more nativist from this point on, this was mainly in reaction to the virtually incomprehensible policies of a German political class that has recklessly endangered the lives of not only tens of millions of Germans, but of hundreds of millions of Europeans more generally. This same incumbent political class, we should note, has also been pursuing economic suicide through the toxic (and insane) decision to phase out nuclear power while simultaneously discarding the Ostpolitik (the pursuit of friendly relations and close economic ties with Russia) of previous decades in favour of vociferous support for the American-led geopolitical confrontation with Russia over Ukraine. Whatever the merits of the Ukrainian cause, this has endangered the supply (or at least the supply at a reasonable price) of the larger part of Germany’s natural gas, which is critical for maintaining the global competitiveness of Germany’s much-vaunted manufacturing industry.

So what is the legal fig-leaf under which the ruling political class seeks to suppress the ever-louder protests against Merkel and Scholz’s post-2015 ‘consensus’ of open borders and deindustrialisation?

For the most part, arguments in favour of a ban on the AfD rely upon the party supposedly violating Article 3 of the Basic Law (i.e., the Constitution) — or, more precisely, of violating a modern and deeply ahistorical interpretation of Article 3 which pays little regard to either its actual content or original intentions. A violation of Article 3 would, in turn, arguably allow the party to be banned under Article 21. Article 3 prohibits discrimination against German citizens on the basis of their ethnic or national origin. While it is quite clear that Article 3 was originally conceived as a response to the Third Reich’s persecution of the Jews, it has been recently interpreted by some legal commentators to mean that any conception of Germany as a primarily ethnic German state, and any statement of a desire to protect this fact, is ipso facto unconstitutional on the conjectural basis that this necessarily entails discrimination against German citizens who are not of German ethnicity. It was on these grounds that commentators first began arguing for a ban on the AfD in 2020, because the AfD manifesto claimed that the party wanted to defend the German people — the Deutsche volk — a phrasing that, while unambiguously ethno-cultural in meaning, did not yet entail any substantive policy prescriptions.

But what is the actual content of Article 3? And can the AfD legitimately be regarded as acting ‘unconstitutionally’ in desiring to repatriate German citizens who have refused to assimilate? Article 3 states that ‘…no person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions’. While it is clear that this wording would indeed prohibit denaturalisation on an explicitly ethnic basis, this is not what Sellner proposed. In the meeting, he called for the introduction of incentives that would encourage the emigration of ‘unassimilated’ citizens — the primary issue with such people not being their foreignness per se, but rather that their beliefs and practices are not aligned with the rest of German society. For example, is it discriminatory to suggest that a third-generation Salafist or Turkish nationalist should be paid to leave Germany, or that the practice of such ideologies should be prohibited or severely discouraged? Is it discriminatory to prohibit the construction of new mosques or to ban ritual animal slaughter? And, most importantly, if the imputed aim of such a policy is to gerrymander a continued demographic majority for ethnic Germans, is this discriminatory in and of itself?

I think that we can safely conclude that the authors of the Basic Law — which was written in 1949, and thus quite naturally assumed a (mostly) ethnically homogenous and normatively Christian country — would not have thought so. They certainly didn’t intend the new Federal Republic of Germany to be legally straight-jacketed into permanent demographic flux.

And indeed, if one looks at previous attempts to ban ‘extremist’ political parties, these have all centred on what are very clear cases of ‘unconstitutional’ beliefs and principles — outright opposition to the central tenets of the West German political order, not vague, conjectural, and ahistorical interpretations of Article 3. Moreover, some of these cases were brought in the context of aid to these parties from hostile foreign states. The Socialist Reich Party’s internal structure, centred hierarchically on an unelected executive, was argued to be a direct imitation of the NSDAP’s Führerprinzip. The Communist Party of Germany, which on the orders of Stalin himself had refused to sign the Basic Law (as this would help legitimise the Federal Republic), was accused of seeking to overthrow the West German constitutional order more broadly, especially given that a ‘dictatorship of the proletariat’ was blatantly incompatible with parliamentary democracy. On a similar basis, prosecutors sought to ban the NDP in 2003 and 2017, with the first case failing due to the possibility that some of the ‘extremist’ activity within the party had been carried out by members of the German intelligence services,² and the second case failing due to a belief that the party was no longer a sufficient electoral threat to warrant a ban.

In all these cases, successful or not, the political party in question had an ideological and/or organisational orientation that could legitimately be construed as hostile to the very principle of parliamentary democracy. This is obviously not applicable in the case of the AfD. As such, the legal case against the AfD seems fundamentally baseless, resting on the perception that it has failed to pass an arbitrary ‘vibes’ check. The folksy, somewhat volkisch national-conservativism of the tweed-wearing Anglophile Alexander Gauland (co-leader of the AfD), which would have been not at all out of place in historical West German centre-right politics, is thus condemned as a harbinger of an incipient Nazi resurgence. Nobody advocating for a ban on the AfD can point to any clear legal rationale or precedent, instead relying on a vague hunch that waving the German tricolour a little too passionately must now be a crime in itself.

However, partly in response to these legal threats, AfD leaders have become increasingly cautious in their wording and rhetoric. Indeed, in response to the recent allegations, AfD co-chairwoman Alice Weidel has said that ‘…of course everyone who has German citizenship is part of our people’ — meaning that a naturalised Erdoğan supporter is supposedly as German as a man whose ancestors fought at the Battle of Teutoburg Forest. The modern reinterpretation of the German Basic Law has meant that the recognition of any scalar or even conditional element of German citizenship is now increasingly considered semi-illegal within the party-political sphere. Sellner’s plan — if real and if even presented to the AfD leadership — didn’t seek to discriminate against people on basis of ethnic origin. But the response to the plan suggests that even arguing that German citizenship might be contingent on some kind of loyalty to the German state, let alone cultural affiliation with the ethnic German people, is now verboten.

Ultimately, it is unlikely that the AfD will actually be banned. It is too popular at both a national and a regional level, and a ban would probably lead to severe, even dangerous, discontent. It is much more likely that the AfD will have state funding withdrawn from it, and that it will be subject to even more aggressive surveillance from the German intelligence services: the AfD’s more radical youth wing, Junge Alternative, and the party’s own right-wing internal faction, Der Flügel (‘The Wing’), have both already been investigated by the ‘Federal Office for Protection of the Constitution’ (Bundesamt für Verfassungsschutz, BfV), now a kind of social-democratic Stasi. It is worth noting here that the atmosphere in Germany is such that even the man who headed the BfV from 2012 until 2018, civil servant and politician Hans-Georg Maaßen, who founded the right-wing and anti-immigration Values Union (WerteUnion) — previously a faction within the CDU and now an independent political party — is currently under investigation by the BfV for ‘extremism’ — quite plausibly revenge from his former colleagues not only for his political views, but also for his very public downplaying when in office of the risk posed by ‘right-wing extremism’.

The CDU itself remains divided over how best to approach the AfD. Having jettisoned any vague pretensions of being a right-wing party under Angela Merkel, kept alive only by a captively deferential boomer vote, some within the organisation are reconsidering its orientation. The current leader of the CDU, Friedrich Merz, has suggested in the past that his party could work with the AfD on the local level — bearing in mind that in much of the former GDR, the AfD is the de facto opposition. While this was suggested more of practical exigencies — without cooperating with AfD at the local level, it can be literally impossible to pass municipal laws — he was subject to immediate condemnation, soon rowing back from his comments. Still, it will be interesting to see whether the cordon sanitaire around the AfD will break, and whether Germany’s supposed ‘centre-right’ can reach out to the growing national-conservative element within German politics, perhaps mirroring the relationship between Austria’s own centre-right and the right-wing populist Freedom Party.

These difficulties are somewhat ironic, as most of the founders and titans of the Federal Republic, men like Konrad Adenauer and Helmut Kohl — the latter even allegedly discussed the repatriation of half the Turkish population with Margaret Thatcher — would undoubtedly also be subject to political investigation if they were magically transported to the Germany of 2024. After all, it is clear that the Federal Republic was conceived of as an ethnic German state from its founding, which was reflected in its ‘right of return’ laws — which, just a few decades prior, helped facilitate the migration of more than two million Volkedeutsche in the aftermath of the Cold War — and its jus sanguinis citizenship law — which has prevented even second- and third-generation Turks from being naturalised.

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The German establishment’s reaction to the AfD is reflective of how a putatively ‘centrist’ ruling class throughout much of the West has auto-radicalised, and has utilised and extended an existing, or engineered a new repressive apparatus to quell right-wing dissent. There has been a strange historical reimagining in which support for values that were normative across most of Europe prior to the 1990s, if not later, has been hazily connected to the historical memory of fascism. As detailed by the paleoconservative writer Paul Gottfried in Fascism: Career of a Concept, early populist parties — which simply sought to defend a national-liberal state against nascent multicultural bureaucracies — were accused of having latently genocidal proclivities. A good instance of this is the way in which journalists often describe the AfD as the first ‘far-right’ party to have representatives in the Bundestag since Second World War, when of course the AfD is much closer to the post-war CDU, or indeed even the SPD than it is to the NSDAP.

As many European societies are currently on track to become ‘majority-minority’, it will be interesting to see how political systems across Europe seek to cope with increasing dissent against mass migration. Can discussions of demographics and ‘replacement migration’ remain entirely taboo, or will there be some kind of tacit concession to the end that maintaining ethnic majorities is a legitimate form of statecraft for modern nation-states — as is recognised in practically every other part of the world? It is darkly amusing how Sellner’s alleged program was in many respects actually a ‘centrist’ one that sought, much like the State of Israel — a country whose own ethno-nationalism cannot currently be meaningfully criticised in Germany, where the establishment has perhaps outdone any other Western nation in the noisiness of their support for Israel in their recent conflict with Hamas in Gaza — to use non-ethnic criteria of loyalty to help engineer and maintain a core ethnic majority.

This ‘third way’ between blindly ahistorical civic nationalism (if it can even be called that) and ‘blood and soil’ ethnic nationalism recognises that there is such a thing as a native German people with legitimate interests, but also that it is possible for citizens of foreign extraction to genuinely identify with the country in which they now reside. The new ‘third way’ for nation and citizenship might become mainstream amongst the broader European nationalist right, and could offer a chance to alleviate the growing tensions, demographic and otherwise, in many Western democracies. Whether this project will be allowed to succeed — or whether something more extreme will instead take its place — will depend entirely on whether our own governing class still has the capacity to moderate its own very novel extremism.

1. Germany is currently ruled by the ‘traffic light coalition’: the centre-left Sozialdemokratische Partei Deutschlands (SPD, red), the liberal Frei Demokratische Partei (FDP, yellow), and Die Grünen (the Greens, green). Chancellor Olaf Scholz is a member of the SPD.

2. It was discovered that at least thirty of the 200 most senior members of the Party were Federal informants, including the author of a virulently anti-Semitic tract that became central to the Government’s case against the NPD.