“The Jew” in German Constitutional Law

This paper looks at the status of Jews in German constitutional law. The discourse on the Jewish person is a racial discourse that is hardly identifiable as a such because of the lack of self-understanding of Germany as a “racial state.” I claim that there are three constitutional constructions of the Jew—as “historical,” “fictive,” and “real”—which yield a lose-lose situation, as they are not only harmful to Jews, but also to other ethnic and racial minorities. The case law illustrates how the dominant legal discourse denies the raciality of the German state, constructing the “historical Jew” in order to de-racialize Jews in today’s Germany. I will also discuss to what extent the German constitutional discourse on the headscarf created the “fictive Jew,” i.e. “the Jew with the kippah” to offer the ultimate historical and moral argument to ban the headscarf. Finally, I show that the “real Jew” is related to other racialized subjects, particularly to Blacks, Muslims, and Romas