The trial to outlaw the Communist Party (KPD) in the early 1950s was a high point of the early Cold War era in West Germany. In August 1956, the Constitutional Court formally declared the party illegal. This decision did not have a large impact on the political landscape as by the mid-1950s the KPD had lost most of its political influence and communist activism was already drastically curtailed by a series of laws and decrees. However, the trial and its preparation offer an intriguing window into Cold War politics and the role of the judiciary. Over the years, the trial has been viewed mostly negatively by historians, who have seen it as proof of severe democratic deficiencies of the early Federal Republic.
This is also the main argument of Josef Foschepoth's well-researched study. He argues with verve that from its beginning the trial lacked basic democratic legal standards, and he draws attention to the scandalously close communication between the Adenauer government and high-ranking judges of the Constitutional Court. In reviewing a myriad of government sources, some of which only became available to scholars in recent years, the author is able to show the degree to which the federal government openly as well as secretly pressured the newly formed court into action, and the degree to which the court proved open to such pressure. The government tried both to outlaw communism as soon as possible and to limit the power of the Constitutional Court that was in the process of establishing itself as a major player within the democratic system. In what often reads like investigative journalism, Foschepoth formulates a devastating indictment of the West German political class in the 1950s, for whom the defense of the state took precedence over the defense of democracy. The federal government was willing to sacrifice basic human and political rights in its attempt to contain communism and solidify its own power. In the author's view, the political persecution of communists also served the purpose to cover up the smooth political integration of the large majority of former National Socialists. What is more, the reluctance of the Constitutional Court to take on the case and reach a verdict did not stem from democratic scruples but from some of the top judges’ fear of having their National Socialist past exposed by the East German press. The analysis of the trial itself is framed as a duel between the Federal Government and the SED-sponsored defense lawyers. These lawyers were at first able to embarrass the Federal government and the court by highlighting irregularities and blatant partisan mistakes in the proceedings and their preparation. However, after some months, the prosecutors were able to turn the tables and, in the end, successfully convinced the court to ban the KPD.
Foschepoth has written a political history of the KPD trial that focuses on the high-level negotiations between the Adenauer government and the leading protagonists of the Constitutional Court from 1951 to 1956. Drawing heavily on existing scholarship, he links these negotiations to the broader history of the West German Communist Party, which since the late 1940s served as a political instrument of the East German communist regime and its radical attempts to mobilize West Germans against their government. Later chapters describe the aftermath of the verdict, the most immediate effect of which was a renewed persecution of active communists that lasted well into the 1960s. A public campaign seeking amnesty failed to gain traction after the Red Army invaded Hungary in 1956. Only in the late 1960s did the anticommunist fervor die down as the new SPD government reformed the justice system and allowed for the establishment of a new communist party, in an attempt to establish better relations with the communist East.
Overall, Foschepoth's study offers important insights into anticommunist politics in West Germany during the early Cold War era and into the workings of the Constitutional Court in the first years of its existence. The book's focus on high-level politics gives the study a cohesive frame, and the author persuasively situates the trial within the larger postwar struggle of the two German regimes for political legitimacy and for the hearts of the German people. However, the book also opens itself up to criticism. It often reads more like a long historical-political essay than a multifaceted history interested in the many dimensions and nuances of the trial and anticommunism in general. Foschepoth wants to understand the trial as part of a “Cold Civil War” waged between the West German government and the SED as they attempted to mobilize and integrate nationalist sentiments within their respective regimes. But to declare the conflict a civil war does not seem appropriate as the author mainly describes a power struggle between two governments. Ordinary Germans for the most part did not actually engage in anything resembling a civil war. Although most West Germans despised communism, they did not see East Germans as enemies, and only very few of them organized in belligerent anticommunist organizations. The political persecution of communists had clear limits, too, especially on a local level. To focus just on national politics therefore misses important dimensions of Cold War West Germany.
Moreover, the study seems to underestimate the anticommunist Angst permeating the political establishment of the early Bonn republic and pays only limited attention to important political actors beyond the federal government, like the Social Democrats, the churches, and the highly influential trade unions. The campaign against the KPD was certainly often motivated by very dubious and antidemocratic traditions. But the aggressive SED rhetoric and all-out mobilization campaigns also fostered a very real sense of threat that should not be dismissed lightly. The fear of a violent communist takeover, for example, led many Social Democrats, whose democratic credentials cannot be doubted, to wholeheartedly support anticommunist legislation and actions during the 1950s. The book therefore underestimates both the plurality and the limits of anticommunism in the West. Foschepoth offers the valid criticism that many historians tell the history of the Federal Republic narrowly as a history of ever-expanding liberal values. However, his study is in danger of tilting the scale to the other extreme. It is necessary to register the profound shortcomings of the KPD trial and the dire consequences for many communists as well as for West German political culture. But it is equally important to highlight the limits of authoritarian anticommunism. It could even be argued that the KPD trial paradoxically not only marked a high point of Cold War politics and political persecution but also advanced the establishment of a critical liberal public sphere.
