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.
"In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. . . . Brought right up to the moment . . . The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence."—From the foreword by Ruth Bader Ginsburg, Associate Justice, the Supreme Court of the United States
"The constitutional law of Germany—and the judgments of the German Federal Constitutional Court—are central for anyone interested in comparative constitutional law. This book is an excellent introduction to German constitutional thinking. It makes one better understand one's own constitution and its problems. I have relied heavily on the previous editions. This latest one is essential."—Aharon Barak, former President, the Supreme Court of Israel
"This is the single most important book in English on one of the world's most important courts. More than a hornbook because it includes smartly edited cases, and more than a casebook because it adds outstanding institutional, historical, and doctrinal context, this volume provides a first-rate introduction to the German Federal Constitutional Court, which has been among the most influential courts in the world in creating global constitutional law. With this volume, English-speaking readers can see why."—Kim Lane Scheppele, Director of the Program in Law and Public Affairs and Laurance S. Rockefeller Professor of Sociology and International Affairs at Princeton University
"With new coauthor Russell A. Miller, Donald P. Kommers delivers a thoroughly updated and, in some respects, reorganized work, which gives needed attention both to constitutional amendments (as in the chapter on federalism) and to conceptual developments in the Constitutional Court's jurisprudence. The authors' evident familiarity with German and U.S. constitutional law deepens the book's comparative perspective. This has been and will remain an indispensable resource for scholars and students who want to develop a deep understanding of Germany's constitutional system."—Vicki C. Jackson, author of Constitutional Engagement in a Transnational Era
