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The Constitution of the Federal Republic of Germany

The Constitution of the Federal Republic of Germany

by David P. Currie

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A leading scholar of the constitution of the United States, David Currie, in this book turns his attention to one of the most important bodies of constitutional law in the world, the Basic Law of Germany. It is a comprehensive and accessible introduction to the study of the German constitution.

Beginning with an overview of the essential features of the Basic Law


A leading scholar of the constitution of the United States, David Currie, in this book turns his attention to one of the most important bodies of constitutional law in the world, the Basic Law of Germany. It is a comprehensive and accessible introduction to the study of the German constitution.

Beginning with an overview of the essential features of the Basic Law of Germany, Currie then elucidates those features by analyzing a number of decisions of the German Constitutional Court. Contrasting German constitutional law with the American model, Currie further illuminates the German system and provides an invaluable comparative perspective on American institutions, judicial methods, and constitutional principles.

The German constitutional court recently has become the object of international attention as it has grappled with controversies involving abortion, ratification of the Maastricht Treaty, and the reunification of East and West. Currie examines these issues and their impact on the German constitution.

An appendix includes (in English translation) the complete Basic Law for the Federal Republic of Germany of May 23, 1949 as amended to December 1, 1993.

Editorial Reviews

German Law Journal

"Currie and Notre Dame's Donald Kommers produced the definitive scholarly treatments of German constitutional law in English. Their work remains essential today."
Currie (law, U. of Chicago) analyzes the Basic Law of Germany and landmark decisions made by the German Constitutional Court regarding controversies such as abortion, ratification of the Maastricht Treaty, and East and West German reunification. He contrasts German constitutional law with the American model in areas including freedom of expression, church and state, and fundamental rights. The appendix offers the complete Basic Law. Annotation c. Book News, Inc., Portland, OR (booknews.com)
William B. Gwyn
A leading authority on the development of constitutional law in the United States, David P. Currie, in recent years has been thoroughly investigating the constitutional law of the Federal Republic of Germany as interpreted by the country's powerful and highly respected Federal Constitutional Court. The major result of this research is the outstanding book here reviewed, which joins the author with Donald P. Kommers as the foremost American authorities on the subject. While Kommers' THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY(1989) is a mixture of casebook and commentary, Currie's somewhat shorter book is pure commentary and provides the reader with a more comprehensive account of German constitutional law. The two works complement each other to a considerable extent and their intended American audience would do well to consult both of them . "The aim of this book," Currie tells us, "is to explain the essential features of the Basic Law as illuminated by the decisions of the Federal Constitutional Court and compared with the Constitution of the United States." (p. xiv) Although he declares that his approach is "descriptive and comparative" (p. 337), he is not altogether unconcerned with evaluation. For example, after examining the court's decisions concerning freedom of expression, he observes, "In all this there is much food for thought as to the proper role of a constitutional court as well as the proper scope of free expression and of the cognate rights that help to make it a reality. And that, in addition to the more modest but equally worthy goal of better understanding, is what comparative law is all about." (p. 243) Unfortunately, Currie rarely pursues this normative aspect of the subject. He does express his general opinion of the German constitution and the function of the Constitutional Court in interpreting it. "The Basic Law has been a resounding success.... Forty-five years under the Basic Law has meant forty-five years of democracy, freedom, and the rule of law. In making the noble phrases of the Basic Law a reality the Constitutional Court has played a central role. In case after case it has vindicated basic rights. Unlike our Supreme Court, it has given up neither on federalism nor the separation of powers. And since its inception the Constitutional Court has been unhesitatingly obeyed." (p. 339) Currie's remark about the separation of powers in he United States is puzzling given the large number of Supreme Court decisions evoking that doctrine during the Reagan administration. In light of his very positive opinion of the Basic Law and the Court, it is not surprising to find Currie optimistic about the political stability of Germany. "Absent some cataclysmic event,...the past may have value in predicting what is to come; and the recent constitutional history of Germany is reassuring." (p. xi) Page 134 follows: The book is directed mainly toward persons with considerable knowledge of American constitutional law. Comparisons of American and German experience pervade the book. Readers not well versed in American constitutional law may often not find these comparisons very helpful unless they resort to American sources. On the other hand, all American readers will learn much about the decisions of the German Constitutional Court in Currie's clearly written analysis, which is based on the ninety volumes of case reports published since it began operations in 1951 as well as the major multivolume German commentaries on the Basic Law. Persons aware of American constitutional law casebooks and commentaries will find the arrangement of the book very familiar. The opening chapter, after a brief history of former German constitutions, discusses the general character of the Basic Law and the Constitutional Court. Then follow chapters on "The Federal System", "Separation of Powers", "Freedom of Expression", "Church and State", and "Other Fundamental Rights" (concerning marriage; the family and private schools; occupational freedom; life, liberty, and family - including abortion - and equality - including sex discrimination). The Federal Republic's long and detailed Basic Law is added as a seventy page appendix that readers will find themselves frequently consulting. One hopes that future editions of what will likely be a standard work on its subject will include tables of cases and constitutional provisions. Because of the practice of recording the authors of only dissenting and concurring opinions, Currie and other commentators on the German Constitutional Court are precluded from analysis of the jurisprudence of individual judges so standard regarding justices of our Supreme Court. He, however, does ably record important changes in the Court's interpretation of the Basic Law and explains the principles and interpretative rules influencing judicial decisions. Although, like the Supreme Court, the Constitutional Court frequently exercises judicial restraint in considering the actions of other parts of the government, it has not hesitated to invalidate them on several notable occasions. Again as in America, judges in Germany are allowed much discretion in interpreting the constitution by the presence of open-ended, indeterminate words and phrases in the document. For example, Article 1 ( 1), which is unamendable according to Article 79, states, "Human dignity is inviolable. To respect and protect it is the duty of all state authority." As Currie comments, "Obviously this language leaves a great deal of latitude for interpretation." (p. 314) This is equally true of Article 2(1 ) which guarantees everyone "the right to the free development of his personality," which "is no more self-defining in German than in English" and which has been interpreted by the Court as "a general right of freedom of action," which in turn permits judicial review of the reasonableness of all restrictive governmental acts. (pp. 316-7) Although he approves of the use so far made of this authority. Currie raises but does not answer "the question whether so broad a power, however wisely exercised, is consistent with one's conception of democracy . " (p . 3 3 8 ) Besides the open-ended words of the Page 135 follows: constitution itself, the Constitutional Court has interpreted the Constitution as including several equally vague principles which allow for further judicial creativity. While such principles have also been discovered in our own constitution -- e.g., the separation of powers -- it does seem that the minds of German jurists are especially fertile in discovering them in the Basic Law. The following list is hardly exhaustive. The principle of the "Rechtsstaat" embraces considerably more than the Anglo-American concept of the rule of law, including the "principle of proportionality" which requires the legislature when restricting any of the basic rights guaranteed by the constitution to use means appropriate to a legitimate end, reasonably related to that end, and imposing the least restriction on the rights. The principle of the "Sozialstaat" (the social welfare state), although by itself it has not been used by the Court to invalidate any government action or inaction, has, according to Currie, "exerted a powerful influence on the interpretation and application of the laws." (p. 23) The principle of "Streitbare Demokratie" (militant democracy) is a reflection of the relative youth of the regime and the overthrow of Germany's previous attempt at democracy. Based on Articles 21(2), 9(2), 5(3), and 18 of the Basic Law, it allows for the suppression of any actions (including speech and press) and organizations (including political parties) aimed at destroying "the free democratic order." While noting that the United States Constitution contains no similar provisions, Currie perceptively observes, "The fact is that in periods of real or imaginary danger we have tended to adopt measures strikingly similar in effect to those expressly countenanced by the Basic Law, and the Supreme Court has tended to uphold them -- in the teeth of an ostensibly absolute protection." (p. 215) The "Bundestreue" principle legally obligates the parts of Germany's federal system of government to remain faithful to the system. The principle, which has no counterpart in the United States, requires not only that the states not encroach on one another's authority and that the state and federal governments respect each other's authority but also that the parts of the federal system positively assist one another. According to Currie, "Although there seems to have been a general tendency toward increasing central authority in Germany, constitutional limits on federal power remain a reality. Unlike our own Supreme Court, the Constitutional Court [on the whole] has faithfully defended the prerogatives of the states." (p. 101 ) Especially interesting for students of comparative politics is the "Gewaltenteilung" principle (separation of powers), which may appear to be an oxymoron to persons mistakenly accustomed to perceiving parliamentary systems as rejecting a separation of powers for a "fusion of powers." As in the United States Constitution, the principle is not explicitly stated in the Basic Law. In the important KALKAR CASE of 1978, the Constitutional Court observed, "Separation of Powers is not specifically mentioned in the Constitution. Its validity, however, follows from the terms of Article 20(3). (Quoted in Kommers, p. 151) Article 20(3) reads, "Legislation is subject to the constitutional order; the executive and judiciary are bound by law and justice." Equally if not more relevant is Article 20(2): Page 136 follows: "All state authority emanates from the people. It shall be exercised by the people through elections and voting and by specific ("besondere") legislative, executive, and judicial organs." In the court's opinion it would be incorrect to deduce from "the principle democracy" a "monistic theory of power...which would confer monopoly decisionmaking power on parliament" and "undermine the concrete distribution and balance of political power guaranteed by the Basic Law."(Ibid., pp. 150-151) Obviously, in a system of parliamentary government which allows the lower chamber of the legislature to replace the members of the political executive and not only cabinet ministers but also civil servants to be members of the legislature, there is considerably less separation of the executive from the legislature in Germany than in the United States. The Constitutional Court in the 1972 JUDICIAL QUALIFICATIONS CASE recognized that "the principle of the separation of powers is not...realized in pure form in the federal arena. Numerous interconnections and balances exist." However, even "if the separation of powers cannot be understood as meaning a clear-cut separation of the functions of political power, [the Court] must retain the distribution of weight among the three powers as outlined by the Constitution. No branch may obtain a predominance not intended by the Constitution over another power. Nor may [one branch] deprive another of the authority which is needed to fulfill its constitutional tasks." While one branch to some degree might exercise an activity associated with another branch, "the core functions of the different governmental branches cannot be altered. This precludes one of the powers from relinquishing tasks which -- according to the Constitution -- are typically within its purview." (ibid., p. 158) Such reasoning is very similar to that of our own Supreme Court in recent separation of powers cases. Also like our judiciary, one of the most important areas for Constitutional Court action regarding the separation of powers has been determining the degree to which parliament may delegate legislative power to the executive. It is clear from Currie's account that the German Constitutional Court, the constitution it interprets, and the judicial culture that informs its opinions are in several important respects different from their counterparts in the United States. However, Currie leaves us with the impression that with regard to those things contributing most to the success and stability of constitutional democracy the two countries' constitutions and jurists are much alike. Reference: Kommers, Donald P. 1989. THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. Durham, N.C.: Duke University Press.

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University of Chicago Press
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Meet the Author

David P. Currie (1936-2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of four volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court.

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