Donald P. Kommers is Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law Emeritus at the University of Notre Dame.

Russell A. Miller is a Professor at Washington and Lee University School of Law.

The Constitutional Jurisprudence of the Federal Republic of Germany

By Donald P. Kommers Russell A. Miller

Duke University Press

Copyright © 2012 Duke University Press
All right reserved.
ISBN: 978-0-8223-5248-8

Contents

FOREWORD TO THE THIRD EDITION: Justice Ruth Bader Ginsburg…………………………xiPREFACE TO THE THIRD EDITION……………………………………………………xiiiACKNOWLEDGMENTS……………………………………………………………….xviiNOTE ON TRANSLATION AND JUDICIAL OPINIONS………………………………………..xxiABBREVIATIONS…………………………………………………………………xxv1. The Federal Constitutional Court……………………………………………..32. The Basic Law and Its Interpretation………………………………………….423. Federalism…………………………………………………………………794. Separation of Powers………………………………………………………..1525. Political Representation and Democracy………………………………………..2166. Jurisprudence of the Open State………………………………………………3027. Human Dignity, Personal Liberty, and Equality………………………………….3558. Freedom of Speech, Press, and Art…………………………………………….4419. Religion, Conscience, and Family Rights……………………………………….53810. Economic Liberties and the Social State………………………………………622APPENDIX A: CHRONOLOGICAL CHART OF THE JUSTICES…………………………………..713APPENDIX B: BIOGRAPHICAL SKETCHES OF PRESIDENTS AND VICE PRESIDENTS…………………717NOTES………………………………………………………………………..725TABLE OF CASES………………………………………………………………..833INDEX………………………………………………………………………..847PERMISSIONS…………………………………………………………………..871

Chapter One

The Federal Constitutional Court

The jurisdiction of the U.S. Supreme Court extends to cases and controversies arising under the constitution and federal law. Its authority reaches even to private law when the parties in dispute are citizens of different states. By contrast, Germany’s Federal Constitutional Court (Bundesverfassungsgericht), as guardian of the constitutional order, is a specialized tribunal empowered to decide only constitutional questions and a limited set of public-law controversies. Thus, Germany ranks among those civil-law countries with a centralized system of judicial review. The deeply ingrained Continental belief that judicial review is a political act, following the assumption that “constitutional law—like international law—is genuine political law, in contrast, for example, to civil and criminal law,” prompted Germans to vest the power to declare laws unconstitutional in a special tribunal staffed with judges elected by Parliament and widely representative of the political community rather than in a multi-jurisdictional high court of justice dominated by appointed legal technicians.

Another factor that encouraged the framers of West Germany’s Constitution, known as the Basic Law (Grundgesetz), to assign the function of constitutional judicial review to a single court was the traditional structure of the German judiciary and the unfamiliarity of its judges with constitutional adjudication. The German judiciary includes separate hierarchies of administrative, labor, fiscal, and social courts, while civil and criminal jurisdiction is vested in another, much larger, system of ordinary courts. All trial and intermediate courts of appeal are state (Land) tribunals; federal courts serve as courts of last resort. The federal courts, divided by subject matter, are at the apex of their respective judicial hierarchies. These tribunals include the Federal Court of Justice (Bundesgerichtshof) with jurisdiction over civil and criminal matters, the Federal Administrative Court (Bundesverwaltungsgericht), the Federal Finance Court (Bundesfinanzhof), the Federal Labor Court (Bundesarbeitsgericht), and the Federal Social Court (Bundessozialgericht). Like the appellate courts generally, these tribunals are staffed by a host of judges (more than one hundred on the Federal Court of Justice alone) who sit in panels of five. The complexity of this structure and the lack of any tradition of stare decisis would have rendered an American-style, decentralized system of judicial review, in which all courts may declare laws unconstitutional, unworkable in Germany.

Judicial attitudes toward constitutional review also militated against a decentralized system. The background and professional training of the 20,101 career judges (as of 31 December 2008) who staff the German judiciary are unlikely to produce the independence of mind typical of judges in the Anglo-American tradition. German judges usually enter the judiciary immediately after the conclusion of their legal training, and success is denoted by promotion within the ranks of the judicial bureaucracy. In contrast, most American judges are appointed at a later stage of their careers, usually after achieving success in public office or as private lawyers. German judges have been characterized as seeking to clothe themselves in anonymity and to insist that it is the court and not the judge who decides; moreover, the judicial task is to apply the law as written and with exacting objectivity. Although this portrayal of the typical German judge is less true today than it was fifty years ago, the conservative reputation and public distrust of the regular judiciary at the time the Basic Law was created were sufficient to ensure that the power of judicial review would be concentrated in a single and independent tribunal.

ORIGIN

German legal scholars have traditionally distinguished between constitutional review (Verfassungsgerichtsbarkeit) and judicial review (richterliches Prüfungsrecht). Judicial review, the more inclusive term, signifies the authority of judges to rule on the constitutionality of law. Constitutional review, which in Germany antedates judicial review, is associated with Germany’s tradition of monarchical constitutionalism, stretching from the German Confederation of 1815 through the Constitution of 1867 (establishing the North German Confederation) and up to and including the Imperial Constitution of 1871. During this period (1815–1918) when German constitutional thought pivoted on the concepts of state and sovereignty, constitutional review provided the mechanism for defining the rights of sovereign states and their relationship to the larger union into which they were incorporated. Judicial review, on the other hand—a device for protecting individual rights— is associated with Germany’s republican tradition, beginning roughly with the abortive Frankfurt Constitution of 1849, continuing with the Weimar Constitution of 1919, and relaunched with the Basic Law of 1949.

Constitutional Review. Constitutional review appeared in embryonic form during the Holy Roman Empire. The need for unity among the principalities of the empire and peace among their warring princes prompted Maximilian I in 1495 to create the Imperial Chamber Court (Reichskammergericht), before which the German princes resolved their differences. By the seventeenth century the Imperial Chamber Court and some local courts occasionally enforced the “constitutional” rights of estates against crown princes. Compacts or treaties governed their mutual rights and obligations. Constitutional review commenced when these tribunals enforced— to the extent that their rulings could be enforced— the corporate rights of estates under these documents.

Constitutional review in its modern form emerged in the nineteenth century. Again, it served as a principal tool for the resolution of constitutional disputes among and within the individual states of the German Empire and often between the states and the national governments. Under Germany’s monarchical constitutions, the forum for the resolution of such disputes was usually the parliamentary chamber in which the states were corporately represented. Under Germany’s republican constitutions, on the other hand, the forum was usually a specialized constitutional tribunal, the most notable of which, prior to the creation of the Federal Constitutional Court, was the Weimar Republic’s State High Court (Staatsgerichtshof). As major agencies of public law commissioned to decide sensitive political issues, these courts were independent of the regular judiciary and were staff ed with judges selected by legislators.

Like most constitutional courts at the state level before and after the Nazi period, the State High Court was a part-time tribunal whose members convened periodically to decide constitutional disputes. Its jurisdiction included 1) the trial of impeachments brought by the Parliament (Reichstag) against the president, chancellor, or federal ministers for any willful violation of the constitution; 2) the resolution of differences of opinion concerning a state’s administration of national law; and 3) the settlement of constitutional conflicts within and among the separate states as well as between states and the Reich. The State High Court’s membership varied according to the nature of the dispute before it; the more “political” the dispute the more insistent was Parliament on having elected its members.

These structures and powers, which influenced the shape of the Federal Constitutional Court, highlight three salient features of constitutional review in German history. First, as just noted, an institution independent of the regular judiciary exercises such review. Second, it takes cases on original jurisdiction, deciding them in response to a simple complaint or petition, unfettered by the technicalities of an ordinary lawsuit. Finally, it settles constitutional disputes between and within governments. Constitutional review is thus a means of protecting the government from itself and also from the excesses of administrative power. But constitutional review as described here does not contemplate “judges intervening on behalf of citizens against the executive branch of government.” The German legal order has always distinguished sharply between administrative and constitutional law. The juridical basis of the distinction, according to Franz Jerusalem, is that the former concerns the execution of the state’s will once it is translated into law, whereas the latter concerns those organs of government constitutionally obligated to form the state’s will. These organs— the constitutionally prescribed units of the political system—and these alone are the subjects of constitutional review.

Judicial Review. The doctrine of judicial review, unlike constitutional review, was alien to the theory of judicial power in Germany. A judge’s only duty under the traditional German doctrine of separation of powers was to enforce the law as written. About mid-nineteenth century, however, some German legal scholars and judges sought to cultivate ground in which judicial review might blossom. In 1860 Robert von Mohl, who was acquainted with the Federalist Papers and the work of the U.S. Supreme Court, published a major legal treatise in defense of judicial review. Two years later an association of German jurists, with Rudolf von Ihering emerging as its chief spokesman, went on record in favor of judicial review. Jurists attending the meeting recalled that the Frankfurt Constitution called for the creation of an Imperial Court of Justice (Reichsgericht). This court would have had the authority to hear complaints by a state against national laws allegedly in violation of the constitution and even by ordinary citizens claiming a governmental invasion of their fundamental rights, foreshadowing by a century similar authority conferred on the Federal Constitutional Court. Their views, however, like the Frankfurt Constitution itself, failed to take root in the legal soil of monarchical Germany (1871–1918).

The Weimar Republic provided a climate more sympathetic to judicial review. Inspired by the Frankfurt Constitution of 1849, the Weimar Constitution of 1919 established a constitutional democracy undergirded by a bill of rights. The Weimar period also witnessed the continuing influence of the “free law” school (Freirechtsschule) of judicial interpretation, marking a significant challenge to the dominant tradition of legal positivism. And although the Weimar Constitution remained silent with respect to the power of the courts to review the constitutionality of law, judicial review as a principle of limited government enjoyed strong support in the Weimar National Assembly.

As Hugo Preuss predicted—and warned— the Weimar Constitution’s failure to expressly ban judicial review prompted courts to arrogate this power to themselves. In the early 1920s several federal high courts, including the Imperial Court of Justice (which was established under the monarchical regime in 1879 and survived the republican revolution of 1918 with its jurisdiction—and name— intact), suggested in dicta that they possessed the power to examine the constitutionality of laws. On 15 January 1924, deeply disturbed by the swelling controversy over the revaluation of debts, the Association of German Judges confidently announced that courts of law were indeed empowered to protect the right of contract and, if necessary, to strike down national laws and other state actions—or inactions that failed to safeguard property rights—on substantive constitutional grounds. Several months later, the Imperial Court of Justice announced that “in principle courts of law are authorized to examine the formal and material validity of laws and ordinances.”

State courts during the Weimar period held firm to the German tradition that judges are subject to law and have the duty to apply it even in the face of conflicting constitutional norms. Yet even here, differing postures toward judicial review were beginning to emerge. Although most state constitutions said nothing about judicial review, some courts followed the lead of the Imperial Court of Justice by accepting judicial review in principle; however, they seldom invoked it to nullify legislation. Only the Bavarian Constitution expressly authorized courts to review laws in light of both state and national constitutions. The Schaumburg-Lippe Constitution, echoing the still-dominant German view, expressly denied this power to the courts.

When the German states (Länder) reemerged as viable political entities after World War II, judicial review appeared once more, this time as an express principle in several Land constitutions. Perhaps because of the Weimar experience, however, these documents did not authorize the ordinary courts (with civil and criminal jurisdiction) and the specialized courts (including administrative, social, labor, and tax jurisdiction) to review the constitutionality of laws. Once again, consistent with the older and more fully established tradition of constitutional review, this authority was vested in specialized courts staffed with judges chosen by the state parliaments from a variety of courts or constituencies. In any event, as this survey of German constitutional review demonstrates, the framers of the Basic Law had plenty of precedents on which to draw in constructing their own version of constitutional democracy.

Herrenchiemsee Conference. It should now be clear that judicial review in Germany did not spring full-blown from the Basic Law of 1949. It was adopted with German precedents in mind. The Allied powers did, of course, concern themselves with the reorganization of the judicial system. They insisted that any future government of Germany must be federal, democratic, and constitutional. A constitutional government, in the American view at least, implied the judicial power to assess the constitutionality of laws and other official acts. Judicial review was certainly implicit in the American understanding of an independent judiciary. The military governors, however, did not impose judicial review on a reluctant nation. The Germans decided on their own to establish a constitutional court, to vest it with authority to nullify laws contrary to the constitution, and to elevate this authority into an express principle of constitutional governance. While they were familiar with the American system of judicial review and were guided by the American experience in shaping their constitutional democracy, Germans relied mainly on their own tradition of constitutional review.

The groundwork for the Basic Law was prepared in a resplendent nineteenth-century castle on an island in the Chiemsee—a vast Bavarian lake—during August 1948. On the initiative of Bavaria’s state governor, Minister-President Hans Ehard, the Länder in the Allied zones of occupation called on a group of constitutional law experts to produce a first draft of a constitution to expedite the work of the ensuing constitutional convention known as the Parliamentary Council. The Herrenchiemsee proposals, which included provisions for a national constitutional tribunal, followed the recommendations of Professor Hans Nawiasky, commonly regarded as the father of the postwar Bavarian Constitution. Like many other state constitutions drafted in 1946 and 1947, the Bavarian charter provided for a state constitutional court. In cooperation with Hans Kelsen, Nawiasky had prepared a working paper proposing the establishment of a constitutional tribunal modeled after the Weimar Republic’s State High Court. Nawiasky was a strong advocate of judicial review during the Weimar period, and Kelsen was well known as the founder of the Austrian Constitutional Court. Claus Leusser, an Ehard associate and later a justice of the Federal Constitutional Court, also helped to draft the Herrenchiemsee judicial proposals.

As a practical model for defining the powers of the proposed constitutional court, the Herrenchiemsee drafters relied mainly on the Weimar era’s State High Court. The draft plan envisioned a tribunal vested with both the competence of the State High Court (i.e., its constitutional review jurisdiction) and the authority to hear the complaint of any person alleging that any public agency had violated his or her constitutional rights. Aware of the potential power of the proposed court, the conferees recommended a plan of judicial recruitment that would broaden the court’s political support. The plan included proposals for 1) the election of justices in equal numbers by the Parliament (Bundestag) and the Federal Council of States (Bundesrat), 2) the participation of both of these bodies in selecting the court’s presiding justice (president), and 3) the selection of one-half of the justices from the high federal courts of appeal and the highest state courts. But the drafters were at odds over how the new court should be structured; the discord centered on whether it should be organized as a tribunal separate from and independent of all other courts or carved out of one of the federal high courts of appeal.

(Continues…)

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