by Ioannis A. Tassopoulos (LL.B. 1986, hons, University of Athens; LL.M. 1987, S.J.D. 1989 Duke Law), is Professor of Public Law, National and Kapodistrian University of Athens. firstname.lastname@example.org
 R. Albert, Constitutional Amendment and Dismemberment, Yale Journal of International Law, v. 43 (2018), pp. 1, 8, 4: «A constitutional dismemberment alters a fundamental right, a load-bearing structure, or a core feature of the identity of a constitution. It is a constitutional change understood by political actors and the people to be inconsistent with the constitution at the time the change is made. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake a constitution». See also, R. Albert, Constitutional Amendments, Oxford 2019, p. 76.
The Golden Dawn has been a far right political organization, originally of neo-Nazi ideology, which was also taking part in Greek elections as a political party. The Golden Dawn trial started in April 2015 and ended in October 2020, with a verdict of “guilty” for the leaders and most of the deputies of the party in parliament. It organized paramilitary groups, it applied violent practices, and it was hostile to parliamentary democracy. The Golden Dawn was tried and convicted as a “criminal organization” within the meaning of art. 187 of GRPen.C. (similar to sec. 129 of German Pen.C.), or as a criminal conspiracy in terms of American law. The organization was involved in a number of crimes, including homicide. The trial was widely recognized as an important event in the fight against neo-Nazi ideology and far right extremism in Europe.
The Golden Dawn emerged from the political fringes during the severe economic crisis, which hit Greece in the previous decade. From 0,29% in 2009, to 6.97% in May 2012, it became the 3rd political power with 6,28% in January 2015 and in September 2015 with 6,99%, until the elections of June 2019, when it got 2,93%, losing parliamentary representation because it did not pass the 3% threshold of the total number of votes at the national level.
The Golden Dawn posed a real threat to parliamentary democracy in Greece. The fundamental dilemma has been whether Greece in the course of democracy’s response to the Golden Dawn would become a militant democracy, like the Federal Republic of Germany, or, instead, would remain a more tolerant regime, which does not provide for a special legal framework outlawing political parties in favor of the violent overthrow of democratic constitution. The specifics of Greek legal order and political history rendered this question a most puzzling exercise in constitutional continuity.
The Greek Constitution (art. 29 par. 1) provides that: “Greek citizens possessing the right to vote may freely found and join political parties, the organization and activity of which must serve the free functioning of democratic government.” Surprisingly, and rather counterintuitively, the accepted meaning of the provision is that the Constitution prohibits any intervention of state authorities in the internal life and organization of political parties, and of course it strictly prohibits the enactment of a special law to dissolve political parties. Up to the Golden Dawn, this interpretation of art. 29 par. 1 was firmly and unanimously established. Clearly, the language of the provision does not support this construction. However, it is grounded on a rare, and probably unique in Greek constitutional law, exercise of negative historical interpretation (negative originalism), where the meaning of the provision is derived from what the framers of the constitution decided not to say – even though what they finally did say does not exclude the rejected result. Specifically, the Draft Constitution of 1975 provided for the dissolution of political parties, following a court decision, if “their action tends to overthrow the free democratic regime, or endangers the territorial integrity of the country.”
Although there was no agreement in principle on the question of subversive advocacy as constitutionally protected speech, or not, in fact both the government and the opposition shared the practical and prudential judgment that the costs from risking the ad hoc assessment by the courts of the legality of a political party where much stronger than the resulting benefits. All conceded that hardly anyone could be trusted to decide the degree of exclusion or inclusion of the constitutional order. Therefore, a clear unequivocal and rigid rule prohibiting the abolition of political parties prevailed over the elasticity and fluidity of a legal standard requiring specification from case to case on the basis of the totality of circumstances. This was a choice for legal certainty in favor of strict constitutional impartiality of the rules of political game.
The Nazi background and the violent actions of the Golden Dawn broke the consensus and perturbed the status quo on the prevailing interpretation of art. 29 par. 1 GRC. After all, the language of the provision, combined with the general legislative competence of parliament, clearly allowed for the enactment of a law prohibiting political parties like the Golden Dawn. Therefore, a revisionary interpretation of art. 29 par. 1 has been proposed (mainly by Prof. Ch. Anthopoulos), adapted to the new Greek environment of deep economic crisis in the 2010s, which posed very different priorities from those of democratic transition in 1975: democracy in Greece should not have the fate of Weimar.
However, to what extent do changes of the political landscape entail the reinterpretation of art. 29 par. 1. GRC? Is it consistent with the rigid Constitution, a venerable tradition of Greek constitutionalism, to subvert substantive constitutional continuity, whenever the political situation changes? Isn’t the very purpose of the rigid constitution to resist the dependence of fundamentals on changing directions of the wind? To this, the revisionary response was that democracy should protect the integrity of the political process from the neo-Nazis. In short, was the prevailing interpretation a matter of principle or of pragmatism? At bottom, the disagreement concerned the nature of the 1975 consensus on art. 29 par. 1 GRC.
It is really striking that in a country as deeply polarized as Greece, there has been unanimity of all political parties, of the judiciary of both ordinary and administrative jurisdiction, and last but not least of constitutional scholars, on the rigid negative rule of art. 29 par. 1 GRC, even though this rule counters the most basic and entrenched principles of Greek constitutionalism: a tradition of rigid constitution, where the text is attributed normative value and the literal-teleological method of interpretation prevails over constitutional originalism. The fact that Germany, one of the most influential countries on Greek constitutional law, provides for the dissolution of political parties (GermanC. art. 21.2.), offering a comparative counterexample, renders outlandish, for Greek realities, this accord. How, then, was it possible? The answer lies in the ties between history and law.
Formally, the Constitution of 1975 is the outcome of a “revisionary parliament.” It goes back to the Constitution of 1952, which was established at the aftermath of the Civil War of the 1940s as a revision of the Constitution of 1911. The latter goes further back to the liberal and democratic Constitution of 1864. All of these Constitutions were adopted in situations of constitutional discontinuity and disruption: revolutionary moments (1864), military intervention (1909-11), liberation and Civil War (1952), collapse of the dictatorship (1974-75). At these singular moments of history, the choice for constitutional continuity with the past in the form of a revisionary parliament to amend the pre-existing constitution, instead of a constituent assembly to establish a new one, was itself the exercise of constituent power and often (e.g. in 1952) the consequence of a failure to agree on a new constitution. The resulting discrepancy between formal legality and political reality was aggravated by the fact that the procedures for the revision of the Constitutions, which, supposedly, were being amended, had not been followed. Among these Constitutions of Greece, those of 1952 and 1975 are connected with a common thread, which explains the deeper issue involved in the prevailing interpretation of art. 29 par. 1. GRC. They are both interesting examples (the former rather atypical, the latter quite typical) of Richard Albert’s theory of constitutional dismemberment. Constitutional dismemberment offers an analytical tool for situations where we have an intermediate state, of partly exercised constituent power and partly exercised constituted (amending) power, under conditions of formal legal continuity.
During the Civil War, Greece did not abandon democracy, but the state introduced a body of laws, restricting civil and political liberties and outlawing the Communist Party of Greece (1947). Interestingly enough, the Constitution of 1952 did not introduce a regime of militant democracy. Instead, it kept the liberal and democratic Constitution of 1911 adding to it ethnocentric ideological flavor. But the body of anti-communist legislation of the Civil War was also kept in place, as a temporary supplement to the Constitution, a “para-constitution” (a term used in official document), which was to be abolished by simple majority and statutory law as inconsistent with the Constitution, when the “rebellion” was over (the Civil War ended practically in 1949, though not officially). This is an atypical case of constitutional dismemberment, because the Constitution-makers themselves provided for it: at any moment, the legislator could unplug the para-constitution from the main Constitution and drop it as a useless peripheral.
Under the Constitution of 1952, the fundamental legal and political issue was the abolition of the exceptional legislation of the Civil War to restore the integrity of the liberal Constitution. Inclusive constitutionalism passed through the dismemberment from the post-Civil War dualist regime of the para-constitution. In the 1960s, with the tensions of the Cold War appeased, the pressure to resolve the issue increased. At that moment, the Conservative Government introduced in 1963 a proposal to amend the Constitution, which provided for the abolition of anti-democratic political parties with a judicial decision, adopting explicitly the German model. This compromise to abolish the para-constitution at the cost of accepting militant democracy was rejected and as a consequence the country entered a period of extreme polarization, combined with illegal actions of the Crown, which discredited the constitutional order. The dictatorship of the Colonels (1967) tried to legitimize itself by introducing a sham-constitution, which provided as well for the possibility of outlawing political parties by a decision of a constitutional court.
In 1974, when the dictatorship collapsed under the pressure of the Turkish invasion in Cyprus, the Government of National Unity opted for continuity with the past, introducing a revisionary parliament instead of a constituent one. However, consistent with the logic of constitutional dismemberment, which requires a higher level of popular consent, it reserved resolutely the question of the regime as monarchy or republic to be decided by a popular referendum, even though the hereditary head of state was an inviolable element of the Constitution of 1952 not subject to amendment. The abolition of monarchy by overwhelming popular vote implemented the constitutional dismemberment of the previous Constitution and marked the transition to a new one where the greatest source of unconstitutional crises, i.e. monarchy, was eradicated.
The established interpretation of art. 29 par. 1. GRC is part and parcel of the aforementioned constitutional dismemberment whose fundamental end was to reconnect with the experiment of inclusive constitutionalism, which had been tried in 1911 but had failed because of the King’s unconstitutional conduct in 1915, over the question of Greece’s participation in World War I. Since then, as political polarization gradually escalated, so the level of inclusiveness of Greek constitutionalism steadily deteriorated by criminalizing speech and associations for their bad tendency against the established regime.
In 1975, the historic course toward the reaffirmation of the inclusiveness of Greek constitutionalism passed through constitutional dismemberment, by abolishing the elements, which were instrumental in perpetuating constitutional monism and ethnocentrism. These were monarchy and the power to dissolve political parties merely on the basis of the “band tendency” of their political ideology, organization and conduct. Surely, it made no sense to abolish monarchy but keep the dissolution of political parties. The prevailing interpretation of art. 29 par. 1. GRC aligned and harmonized the institutional with the substantive element of the new Constitution, making possible for the first time in Greece the legitimacy of the rules of the game. It was the Greek equivalent to the First Amendment replacement of the bad tendency test with the clear and present danger test, in the USA. Nothing less was at stake in the Golden Dawn trial.
Eventually, the constitutional order showed strong resilience; the legal order managed to absorb the shock of the Golden Dawn without confusing the categories of political party and criminal conspiracy, because under art. 187 GRPC a criminal conspiracy requires the perpetration of crimes over and beyond the political features of a political party, e.g. manslaughter, assaults, etc. The Golden Dawn was tried and convicted not as a political party for political crimes, but as a conspiracy (in Greek law, criminal organization) for common criminal activity.
In 1975, constitutional dismemberment was tied to the inclusiveness of the constitutional order, in Greece. The concept of dismemberment offers an alternative to the binary logic of all or nothing, lawful or unlawful, which characterizes constituent power and constitutional amendment. But constituent power as a legal doctrine is quite different from constituent power as a historical process of founding.
Under the Greek Constitution of 1952 the transition from the Civil War to normalcy passed through constitutional dismemberment by abolishing the para-constitution from the legal order. This was postponed indefinitely, because it depended on the political will of the winners of the Civil War to liberalize the regime in order to include the losers. But the former were not prepared to change the post-Civil War legal order through constitutional dismemberment, as ordained by the Constitution-makers. Consequently, legal time had to follow historical time, which is momentous.
The historical evolution of the constitutional order is marked by continuities and breaches. Some parts are dropped and abandoned from the institutional package of a certain society, while the basic framework and institutional elements are kept in their original form, under conditions of relative legal continuity. The passage from one legal state to another legal state of the same constitutional order is not instantaneous, thorough and clear-cut, as legal doctrine tends to assume. More often than seldom legal orders do not succeed one another neatly (just think of the Brexit mess!). It is a process uncertain, relatively contingent and historically dependent.
In Greece, constitutional dismemberment stood for the choice in favor of inclusive constitutionalism. In Greek historical context this meant the rejection of the notion of militant democracy. The Golden Dawn trial raised the question whether the fundamental choice for inclusiveness could be combined with the effective defense of democracy against its enemies. The Golden Dawn trial offered a positive response to this historical challenge. Liberal democracy could successfully tame the neo-Nazi threat and the Golden Dawn without becoming a militant democracy. Constitutional continuity is preserved.
 This Note summarizes a detailed article, in Greek, I. Tassopoulos, Democracy Confronted with its Enemies: The Maturity of Greek Constitutionalism, to be published in the forthcoming issue of the Theory and Practice of Administrative Law, v. 12/2020, pp. 30-61. Citations in this note are omitted except for the absolutely necessary ones. For full documentation see this article.
 I. Tassopoulos, The Constitutional Problem of Subversive Advocacy in the United States of America and Greece, Athens 1993, p. 46.
 Albert, Constitutional Amendment and Dismemberment…, supra p. 73.
 Albert, Constitutional Amendment and Dismemberment…, supra p. 56.
 I. Tassopoulos, The Experiment of Inclusive Constitutionalism, 1909-1923, in P. Kitromilides (ed.), Eleftherios Venizelos – The Trial of Statemanship, Edinburgh 2006, p. 251.
 X. Contiades & A. Fotiadou, On Resilience of Constitutions: What Makes Constitutions Resistant to External Shocks?, 9 Vienna J. on Int’l Const. L. 3, 22 (2015).
 Balancing tries to provide for intermediary positions but ultimately it does not escape the dilemma of legality.
 See Albert, Constitutional Amendment and Dismemberment…, supra p. 56-57, 73.