Can Germany Ban the AfD — and Should She?

By Matthew Parish

Thursday 3 September 2026

Germany possesses one of the more curious constitutional arrangements amongst modern liberal democracies. She is a democracy that reserves to itself the right to abolish political parties for being insufficiently democratic. This sounds like a contradiction. In fact it is the product of an unusually painful historical lesson.

The question has ceased to be academic. The Alternative für Deutschland — the AfD — obtained 20.8 per cent of the vote in the February 2025 federal election, more than doubling its 2021 share and becoming Germany’s largest opposition party. Its strength has subsequently continued to cause alarm, particularly in eastern Germany. As Germany approaches important regional elections in September 2026, prominent politicians have renewed calls for prohibition proceedings against parts of the party.

Hence Germany is approaching a constitutional dilemma of unusual gravity. Can the German courts prohibit the AfD? The answer is probably yes, although doing so would be considerably more difficult than is sometimes imagined. Should they? That is another matter altogether. The distinction may determine the future character of German democracy.

The militant democracy

The German Basic Law was drafted by people who remembered how the Weimar Republic died. Their conclusion was that democracy need not remain constitutionally neutral towards organisations determined to destroy it.

The resulting doctrine is sometimes described by the German expression wehrhafte Demokratie — defensive or militant democracy. Liberal democracy is entitled to defend itself. Article 21(2) of the Basic Law therefore provides that political parties which, through their objectives or the conduct of their adherents, seek to undermine or abolish the free democratic basic order, or endanger the existence of the Federal Republic, are unconstitutional. Crucially, politicians cannot simply declare a troublesome opposition party illegal. Article 21(4) reserves that determination to the Federal Constitutional Court in Karlsruhe.

That safeguard matters. An application may be brought by the Bundestag, Bundesrat or Federal Government. A Land government may apply where the party concerned is organisationally confined to that Land. If the Constitutional Court declares a party unconstitutional, the consequence is dissolution and a prohibition upon establishing a replacement organisation. So there is no serious legal doubt that Germany can, in principle, ban a political party. The question is whether the AfD satisfies the extraordinarily demanding constitutional test.

The lesson of the NPD

Here matters become more complicated. In 2017 the Constitutional Court considered an attempt to prohibit the National Democratic Party of Germany, the NPD — a party considerably more straightforwardly neo-Nazi in its political philosophy than the AfD. The Court reached a remarkable conclusion. It essentially accepted that the NPD’s political project was hostile to the free democratic constitutional order. Its ethnically defined conception of the German people was inconsistent with human dignity and equality. Nevertheless the Court refused to prohibit it.

Why? Because the NPD was too insignificant to be dangerous. The Constitutional Court held that prohibition requires more than objectionable ideas. A party must actively and systematically pursue the destruction or impairment of the democratic constitutional order and there must be sufficiently concrete and weighty indications that achieving those objectives is at least possible. This has become known as the requirement of potentiality.

The irony is obvious. The NPD escaped prohibition partly because hardly anybody voted for it. The AfD cannot rely upon that argument. A party receiving 20.8 per cent of the federal vote, represented extensively in the Bundestag and enjoying still greater support in parts of eastern Germany plainly possesses political potentiality. Indeed that may prove the easiest part of an AfD prohibition case. The very electoral success that gives the AfD democratic legitimacy simultaneously distinguishes it from the NPD for the purposes of Article 21. The constitutional question would therefore move elsewhere: what precisely is the AfD trying to achieve?

Is the AfD unconstitutional?

Here the answer becomes considerably less straightforward than political rhetoric sometimes suggests. Germany’s Federal Office for the Protection of the Constitution — the Bundesamt für Verfassungsschutz — announced in May 2025 that it considered the AfD nationally to be a confirmed right-wing extremist organisation. But that classification became embroiled in litigation.

On 26 February 2026 the Administrative Court in Cologne prohibited the federal intelligence service, pending determination of the principal proceedings at first instance, from treating the AfD as a gesichert rechtsextremistische Bestrebung — a confirmed right-wing extremist endeavour. The Federal Interior Ministry declined to appeal the interim ruling.

This decision deserves rather more attention than it sometimes receives. The Cologne court did not decide that the AfD is constitutionally innocent. It considered that there were anti-democratic tendencies within the party. But upon the evidence before it, the court was not satisfied that these tendencies characterised the federal party as a whole sufficiently to establish an overarching anti-constitutional orientation.

Meanwhile the picture at Land level is different. By June 2026 state constitutional-protection authorities treated AfD organisations in Thuringia, Brandenburg, Saxony, Saxony-Anhalt and Lower Saxony as confirmed right-wing extremist organisations, although classifications and litigation vary between Länder. This distinction may ultimately become extremely important.

The AfD is not a monolith. There are members whose politics might reasonably be described as national conservative, Eurosceptic, anti-immigration or populist. However objectionable one may find such opinions, none is by itself unconstitutional. Liberal democracy protects the right to hold disagreeable political opinions — indeed that is one of its purposes. There are also elements of the AfD whose conception of Germany appears markedly more radical: an ethnically rather than civically defined nation, systematic distinctions between Germans according to ancestry and rhetoric suggesting that citizens with immigrant backgrounds do not possess quite the same claim to membership of the national community as other Germans.

That is where Article 21 becomes dangerous for the AfD. The Constitutional Court’s NPD judgment identifies human dignity and democratic equality as components of the free democratic basic order. An organised political programme that sought systematically to subordinate citizens according to ethnicity could therefore cross the constitutional boundary.

Nevertheless courts prohibit parties, not atmospheres. A successful application would have to establish that such objectives are attributable to the AfD institutionally — through its leadership, programme, organisational conduct and sufficiently representative behaviour of its members and adherents — rather than merely assembling an anthology of outrageous statements by individual politicians. The Cologne decision of February 2026 demonstrates precisely how difficult that evidential exercise can become.

The strongest case for prohibition

There is nevertheless a powerful argument for taking the case to Karlsruhe. Germany did not insert Article 21 into its Constitution as decoration. The fundamental historical lesson behind wehrhafte Demokratie was that constitutional institutions must act before an anti-democratic movement has captured the state, not afterwards. Waiting until such a movement controls the police, ministries and parliamentary machinery rather defeats the point.

The AfD’s growing electoral strength therefore cannot itself constitute an argument against constitutional scrutiny. Quite the reverse. If compelling evidence establishes that a politically powerful party is pursuing an ethnically discriminatory state, dismantling constitutional equality or destroying pluralistic democracy, then Article 21 was designed for precisely that situation.

There is another argument. Politicians need not themselves decide whether the AfD is unconstitutional. Karlsruhe does. Commencing prohibition proceedings is not the same thing as prohibiting the AfD. The Bundestag, Bundesrat or Federal Government would merely place evidence before the Constitutional Court and ask independent judges to apply constitutional standards. The Constitutional Court itself emphasises that this arrangement deliberately removes prohibition decisions from the executive so that they are determined judicially rather than politically.

Indeed proponents of proceedings have argued precisely this. Bundestag debates have already seen parliamentarians maintain that there is sufficient evidence to place the question before Karlsruhe rather than leaving politicians perpetually debating it amongst themselves. That argument has considerable force.

The strongest case against

Yet there is a formidable democratic objection. Twenty per cent of German voters cannot be prohibited. Their political party can be dissolved, its property confiscated and successor organisations forbidden. Their grievances cannot. This distinction is critical.

If millions of Germans believe that immigration has been excessive, that Berlin’s political establishment ignores eastern Germany, that European integration has gone too far or that conventional parties no longer represent them, dissolving the AfD does not make those opinions disappear. It may intensify them.

The AfD would immediately present prohibition as confirmation of its central political narrative: that an insulated German establishment is prepared to manipulate institutions to prevent ordinary citizens from changing national policy. That argument would be enormously powerful even if legally false. The optics would become especially troublesome because the AfD is no longer a fringe movement. Prohibiting a party receiving one voter in five is fundamentally different in democratic appearance from suppressing a tiny neo-Nazi organisation. The paradox of wehrhafte Demokratie is therefore that its weapons become politically more dangerous precisely when the enemy becomes strong enough for their use to become legally plausible.

Germany should distinguish the AfD from its components

There may be a more sophisticated answer. German constitutional law permits a declaration of unconstitutionality to be limited to a legally or organisationally independent part of a political party. That possibility deserves considerably more attention. The constitutional problem may not be whether every person carrying an AfD membership card is an enemy of democracy. That proposition would be difficult to establish and is almost certainly untrue.

The question may instead be whether particular organisational components have developed into genuinely anti-constitutional political movements. Recent proposals from senior German politicians have moved in precisely this direction, suggesting scrutiny of AfD branches in four eastern Länder rather than immediate prohibition of the federal party as a whole.

This has several advantages. It distinguishes radical conservatism from constitutional subversion. It gives moderate members of the AfD an incentive to separate themselves from extremist factions. Most importantly, it preserves the principle that voters dissatisfied with immigration, European integration or conventional German politics remain entitled to political representation. Democracy should suppress organisations only for attacking democracy itself — never merely for being unpleasant.

There is also a lesser weapon

Germany has another constitutional mechanism that is frequently overlooked. Article 21(3) permits parties oriented towards undermining the free democratic basic order to be excluded from state financing and associated tax privileges. Unlike outright prohibition under Article 21(2), this mechanism does not require precisely the same showing that the party possesses the potential successfully to realise its anti-constitutional objectives.

That provision exists partly because of the NPD judgment. It represents an intermediate constitutional response: the democratic state need not finance organisations dedicated to attacking its constitutional foundations even where outright dissolution would be excessive. For portions of the AfD, that route may ultimately prove more defensible than prohibition.

The danger of doing nothing

Nevertheless Germany should resist the comforting assumption that ordinary democratic competition must always solve the problem. History provides no such guarantee.

Democratic institutions are extraordinarily robust until suddenly they are not. Authoritarian political movements rarely announce that they intend to abolish democracy on Tuesday morning. They attack courts, journalism, universities, minorities and independent institutions incrementally, each measure being presented as perfectly compatible with popular sovereignty.

Germany understands this better than virtually any other European country. The Weimar analogy is frequently abused. Contemporary Germany is not Weimar Germany. Her institutions are stronger, its political culture is different, its economy and international environment are radically different and the AfD is not the NSDAP. Nevertheless one lesson survives the analogy.

Democracy cannot sensibly adopt the rule that every action taken by an electoral majority is necessarily democratic. Democracy is not merely voting. It entails opposition parties, independent courts, equal citizenship, freedom of expression, peaceful changes of government and the proposition that today’s electoral losers may become tomorrow’s winners. A political party genuinely committed to abolishing those conditions cannot immunise itself merely by winning elections.

So should Karlsruhe ban the AfD?

Not yet — at least not as a single federal political party upon the publicly established evidence available at the end of August 2026. The February Cologne judgment should make anyone confident of an easy prohibition case pause. A German court has recently examined extensive material and concluded, on an interim basis, that although anti-democratic tendencies exist within the AfD, the evidence presently before it did not justify treating those tendencies as defining the federal party as a whole.

That is not the same legal test as Article 21. Nevertheless it is an important warning.

Germany should therefore continue collecting evidence, prosecuting crimes committed by individuals where appropriate and examining separately those regional AfD organisations in which the evidence of constitutional extremism is substantially stronger. Where an organisationally distinct branch demonstrably embraces an ethnically exclusionary conception of citizenship incompatible with human dignity and democratic equality, proceedings before the Constitutional Court may be justified.

But prohibition of the entire AfD should remain the final constitutional weapon. The reason is not sympathy for the AfD. It is sympathy for democracy. A liberal constitutional order demonstrates its confidence by tolerating people who despise its prevailing orthodoxies. It should intervene only at the point at which political dissent becomes an organised attempt to destroy the constitutional conditions that permit dissent in the first place.

Germany’s constitutional architects understood that distinction. They did not create an administrative power to outlaw unpopular political opinions. They created a painstaking judicial procedure, before the country’s highest constitutional court, requiring formidable evidence before millions of citizens may be deprived of their chosen political organisation. That was wise.

Germany can ban the AfD if Karlsruhe eventually concludes that the party is institutionally committed to undermining the free democratic basic order and possesses a realistic possibility of doing so. Given the AfD’s electoral strength, the second proposition is increasingly difficult to dispute. The decisive battle will concern the first.

And Germany should ban it only if that proposition is proved with compelling clarity. The constitutional state must possess weapons with which to defend itself. But the most dangerous characteristic of a weapon is the temptation to use it merely because one has it. The German Basic Law learned from Weimar that democracy can be too weak to defend itself. The next lesson may be harder still: a democracy defending itself must take care not to damage the very pluralism it proposes to save.