The Constitutional Jurisprudence of the Federal Republic of Germany / Edition 2

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Kommers’s comprehensive work surveys the development of German constitutional doctrine between 1949, when the Federal Constitutional Court was founded, and 1996. Extensively revised and expanded to take into account recent developments since German unification, this second edition describes the background, structure, and functions of the Court and provides extensive commentary on German constitutional interpretation, and includes translations of seventy-eight landmark decisions. These cases include the highly controversial religious liberty and free speech cases handed down in 1995.
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Editorial Reviews

From the Publisher

“Lawyers will benefit from the way Kommers has situated legal material in its political context, and political scientists will have a clear, accurate, and readable account of the law.”—Mary Ann Glendon, Harvard Law School

Praise for the first edition:
The Constitutional Jurisprudence of the Federal Republic of Germany is a gold mine for scholars interested in German or West European politics, for those interested in comparative law and comparative politics as well. It fills an aching void in our knowledge.”—Walter F. Murphy, Princeton University

Kenneth Holland
When the first edition of this casebook of German constitutional law appeared in 1989 it filled a painful void. It made available for the first time in English and in a single volume the most important decisions of the German Constitutional Court. The reunification of Germany the following year drew renewed interest in the work of the Court, resulting in Kommers’ decision to update the book. The second edition includes nine new cases, for a total of seventy-six, and notes on many other less significant cases decided since 1989. The mere existence of a second edition is a tribute to the Constitutional Court, for under a literal reading of the 1949 West German Basic Law, the Court’s labors of forty-one years should have been relegated to the historical archives. The framers of the Basic Law regarded it as a temporary measure and looked forward to the day when East and West would be united and a proper convention representing all of Germany could be assembled to draft a permanent constitution. Largely because of the success of the Court in winning public support for the liberal democratic order enshrined in the Basic Law, there was virtually no demand from the political leaders or people in either the East or the West to call a constituent assembly. For all practical purposes, the Basic Law (GRUNDGESETZ) had come to be a Constitution (VERFASSUNG), and the Constitution had come to be embodied in the interpretations of the Constitutional Court. Of all the organs of the federal government, including chancellor, cabinet, president, parliament and political parties, the Constitutional Court had earned the highest level of public trust. The German Constitutional Court is the most successful of the new judicial institutions established during the U. S. occupation of Germany, Austria, Italy and Japan to exercise judicial review over acts of the legislative and executive branches of government. The Court is the paramount organ of the German political system–exercising final authority over the acts and omissions of the federal government, federal parliament and the states–and, as such, deserves the close attention of students of German politics in particular and comparative politics in general. The book is both a political science analysis of the role of the Constitutional Court in German politics and a casebook analogous to those used to teach American constitutional law to law students. Kommers has selected and abridged the Court’s most significant judgments. The abridgments average three pages in length and are supplemented by dozens of half-page "notes" summarizing less important decisions. The author followed the plan of organization informing most U. S. constitutional law casebooks. Part One, which summarizes the principles of German constitutionalism, is followed by a part on national powers and federalism, and the book concludes with Part Three, devoted to the Court’s decisions dealing with civil rights and civil liberties. The two chapters in Part One are dedicated to the origin and jurisdiction of the Federal Constitutional Court, the structure of the Basic Law, constitutional interpretation and judicial review. In Part Two the reader finds commentary and cases expounding the meaning of federalism, separation of powers and democracy. Each part is divided into chapters, with a total of nine. Again, reflecting American constitutional law casebooks, Part Three is the longest, with four chapters presenting cases and commentary on economic liberties, human dignity and parenthood, freedom of speech and freedom of conscience and religion. Fortunately for the reader, the percentage of the casebook devoted to background information, commentary and analysis is considerably higher than in most U. S. constitutional law casebooks. The book is addressed to an American audience, and the author does an admirable job of making the jurisprudence of a foreign high court accessible by supplying basic information on the jurisdiction and operation of the Court and by making extensive comparisons with the structure and jurisprudence of the U. S. Supreme Court. In fact, students of American constitutional law will benefit by reading this book because they will come away with a heightened appreciation for what is distinctive about American judicial review and the United States Supreme Court. Kommers’ thesis is that the German Constitutional Court rivals the U. S. High Court in terms of both power and influence and has become a model for countries throughout the world struggling to build liberal democracy. The growth in the Court’s authority has had the recent predictable consequence, says Kommers, of subjecting the tribunal and its justices to increasing criticism from academics, politicians, interest group leaders and journalists that the justices are making rather than interpreting the law. The Court has made so many deposits into Germany’s constitutional bank account, however, that it can freely make withdrawals by rendering unpopular decisions without worrying about political retaliation. The story of the Constitutional Court is a remarkable one. In less than fifty years, it evolved into the second most powerful judicial institution in the world, subordinate in status only to the U. S. Supreme Court. It is the most potent court in nations with Civil law traditions. "Judicial activism" aptly captures the Court’s work vis-a-vis the government and parliament. This activism manifests itself in the Court’s mode of constitutional interpretation. It is not bound by the intent of the framers or by the rule of precedent. It examines the meaning of particular constitutional phrases in the context of the constitutional order as a whole and has even said that certain amendments would be unconstitutional because they are repugnant to the liberal democratic order. The justices do not need to wait for litigation between hostile parties to bring constitutional questions before them. Every significant controversial statute to which constitutional objections are raised makes its way to the Constitutional Court. Between 1951 and 1989 the Court invalidated 423 laws and administrative regulations. Seventy per cent involved provisions of federal law. It only "voided" 264. The remaining 159 were found to be "incompatible" with the Basic Law. Such laws remain in force during a transition period pending its correction by the state or federal parliament. At the same time, Kommers admits that the justices have exercised a high degree of restraint and statesmanship when confronting highly controversial constitutional issues. Through its constitutional duty to provide abstract review on the request of members of parliament or the government, the Court is subject to political manipulation. It has learned to cope with this mandatory jurisdiction by occasionally delaying so long in deciding highly controversial issues that the opposing sides are able to work out a constitutionally acceptable compromise in parliament, prompting the moving party to withdraw the case after sitting on its docket for several years. Withdrawal following long delay has happened in more than half the disputes between legislative and executive branches of government submitted to the Court since 1951. Kommers offers answers to one of the principal questions posed by students of comparative judicial systems--what are the conditions associated with the emergence of a politically powerful judiciary. The justices enjoy a high degree of independence. They serve a single twelve-year term, and the Court controls its own administration and budget. The mode of appointment guarantees that the lower house, the upper house, the government, the states and the opposition parties all have a voice in the selection of justices. This widespread participation gives the Court’s opinions a high degree of legitimacy. Germany’s competitive party system means that the Court always has allies in parliament, regardless of its ideological leanings. Party conflicts are intensified by the division of powers between the national and state governments. Over the years, socialists, greens, liberals and conservatives have criticized the Court. The adoption in 1971 of the practice of writing dissenting opinions has encouraged constitutional dialogue among the justices and more importantly between the Court and the academic community. Since reunification, the Court has been the subject of sustained right-wing criticism. It has been often at odds with the Christian Democratic Party and the government of Chancellor Helmut Kohl. In the HASHISH DRUG case (1994), for instance, the Court, although upholding the constitutionality of existing drug laws, advised parliament to decriminalize the possession and use of small amounts of soft drugs, including hashish and marijuana. In the CLASSROOM CRUCIFIX case (1995), the Court seemed to mandate the removal of crucifixes from all elementary public school classrooms. The state of Bavaria threatened noncompliance, leading Justice Dieter Grimm to publish a response in Germany’s major newspaper, the FRANKFURTER ALLGEMEINE ZEITUNG, entitled "Why a Judicial Ruling Merits Respect." In a press release following the public outcry over its decision, the Court supported Bavaria’s interpretation of its ruling that the constitution only required removal of the crucifix when a student objected to its presence on religious grounds. The Constitutional Court acts as "a republican schoolmaster"--a term applied to the U. S. Supreme Court during the leadership of Chief Justice John Marshall--instructing the German people in the principles of liberal democracy. Many countries in Latin America, Africa and Asia have constitutions but lack constitutionalism, the governmental habit of conforming official actions and policies to a preestablished set of principles and procedures. The Federal Constitutional Court is a model for reformers in developing countries who wish to place their basic document under the guardianship of independent courts of justice.
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Product Details

  • ISBN-13: 9780822318385
  • Publisher: Duke University Press Books
  • Publication date: 12/28/1996
  • Edition description: Second Edition
  • Edition number: 2
  • Pages: 696
  • Lexile: 1600L (what's this?)
  • Product dimensions: 6.20 (w) x 9.30 (h) x 1.80 (d)

Meet the Author

Donald P. Kommers is Joseph and Elizabeth Robbie Professor of Government and International Studies at the University of Notre Dame.

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Read an Excerpt

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

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.


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.


Excerpted from The Constitutional Jurisprudence of the Federal Republic of Germany by Donald P. Kommers Russell A. Miller Copyright © 2012 by Duke University Press. Excerpted by permission of Duke University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Foreword to the Second Edition David P. Currie ix

Foreword to the First Edition Roman Herzog xi

Preface to the Second Edition xiii

Note on Translation and Judicial Opinions xvii

Abbreviations xxi

Part I West German Constitutionalism 1

The Federal Constitutional Court 3

The Basic Law and Its Interpretation 30

Part II Constitutional Structures and Relationships 59

Federalism 61

Separation of Powers 115

Political Representation and Democracy 166

Part III Basic Rights and Liberties 239

Economic Liberties 241

Human Dignity and Personhood 298

Freedom of Speech 360

Freedom of Conscience and Religion 443

Appendix A 507

Appendix B 519

Notes 523

Table of Cases 591

Index 601

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