Donald P. Kommers

The Constitutional Jurisprudence of the Federal Republic of Germany

Kommerss 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.

The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded

First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Millers discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions. Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany , this third edition more closely tracks Germanys Basic Law and, therefore, the systematic approach reflected in the most-respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from Reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germanys counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.

The Federal Constitutional Court in the German Political System

The Federal Constitutional Court is an important policy-making institution in the German political system. As the guardian of the Basic Law, the Constitutional Court has played a critical role in umpiring the federal system, resolving conflicts among branches of the national government, overseeing the process of parliamentary democracy, monitoring the financing of political parties, and reviewing restrictions on basic rights and liberties. In each of these areas, the Courts decisions have shaped the contours of German life and politics. Its influence is fully the equal of that of the Supreme Court in American politics. Despite its “activist” record of nullifying laws favored by legislative majorities, the German Court has managed to retain its institutional independence as well as the trust of the general public.

The Federal Constitutional Court: Guardian of German Democracy

Germanys Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germanys system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. These decisions, along with a discussion of the Hessian Election Review Case—a reminder of Bush v. Gore—are calculated to make political representation both responsive and responsible and to anchor the political system firmly in the democratic values at the heart of the Basic Law.

Judicial Review: Its Influence Abroad

The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is Americas most distinctive contri bution to constitutional government. Judicial review as historically practiced in the United States was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national constitutions, while most European na tions consciously rejected it as incompatible with the prevail ing theory of separation of powers. Germany, Austria, and Switzerland, although marginally influenced by the American experience, developed, as did several commonwealth nations, their own variants of judicial review. Since World War II, judicial review has emerged as a governing principle, partly in response to the excesses of prewar popular democracies, in the constitutions of many countries, including those of emergent nations of Asia and Africa. But in nearly all of these new nations, including Latin American nations, judi cial review has not developed into an effective instrument of limited government. On the other hand, it has worked well in Japan, West Germany, and Italy, whose postwar constitu tions were strongly influenced by the United States. Recent experience shows that judicial review works best in advanced, middle-class societies firmly committed to the idea of limited government.

Abortion and Constitution: United States and West Germany.

ment, by permiting abortions within the first three months of pregnancy, violated the constitutional rights of unborn children.2 These decisions provide us with an uncommon opportunity to compare the constitutional law of different nations on abortion. That the highest tribunals of two robust constitutional democracies and secular political cultures should decide differently the question of the unborn childs right to life under the constitutions of their respective countries must excite curiosity, no matter ones stand or stake in the abortion controversy.

Comparative Judicial Review and Constitutional Politics

The rapid spread of judicial review around the world has resulted in several studies of constitutional courts in various countries. Because of their differing methodological approaches and analytical frameworks, these studies are of limited theoretical value and, in some instances, only incidentally relevant to politics. Nevertheless, they constitute a foundation on which to build a meaningful and unified body of knowledge in the developing field of comparative judicial politics. Three research directions are proposed as a means of accomplishing this objective: to classify judicial review on a worldwide basis and chart its relation to legal and political variables; to systematically study the political roles of courts of judicial review in individual countries; and to embark upon cross-cultural studies of constitutional doctrine.

The Emergence of Law and Justice in Pre-Territorial Wisconsin

P RIOR TO 1825, Wisconsin was largely an uninhabited wilderness,1 though political jurisdiction had been exercised over the area since the sixteenth century. From 1512 to 1627 the sole claim over the area that is now Wisconsin was by Spain, whose jurisdiction was derived from the early discovery of Ponce de Leon.2 Though claiming hegemony over the old Northwest, Spain was never in actual occupation of the territory, so that the pattern of legal development which ultimately emerged in Wisconsin bore little or no imprint of Spanish culture. Not until the middle of the next century were the rudiments of civil government forged in isolated pockets of the wilderness in the wake of French explorations into the territory of the old Northwest. France occupied the territory until February 10, 1763, when civil jurisdiction over Wisconsin passed to Great Britain pursuant to the Treaty of Paris negotiated at the conclusion of the French and Indian War.8 Under French occupation the Coutume de Paris

The Basic Law and Reunification

In The Federal Republic of Germany at Forty, I summed up the Basic Law’s significance with these words: ‘... the Basic Law has been firmly woven into the fabric of West German society and politics; it has become the fertile source of an ever-deepening and widening constitutional tradition. Today... the Basic Law enjoys the status of a genuine constitution framed to last in perpetuity.’1 Now, however, four years later, after Germany’s sudden and unexpected reunification, another stocktaking of the Basic Law and its future seems timely, for reunification has sparked new demands for constitutional reappraisal and reform, a task recently undertaken by a newly created parliamentary commission on constitutional revision. In structuring this brief commentary, I (1) describe the setting of the current campaign for constitutional revision, (2) comment on proposed changes in the Basic Law, and (3) assess the likelihood and propriety of constitutional change in reunited Germany.

The Supreme Court and the Constitution: the Continuing Debate on Judicial Review

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory.* They explore important questions about the role of the Supreme Court and the meaning of the Constitution. But as they illustrate, constitutional theory means different things to different scholars. Michael Perry offers us a theory of judicial review. His work, like John Agrestos, is animated by a fascination with what judges should do when they decide constitutional cases. It is also driven by his desire to reconcile judicial review with democracy, whereas Agrestos concern is with the relationship of judicial review to our governmental structure of separation of powers and checks and balances. Sotirios Barber, on the other hand, has a theory of the Constitution. He seeks to define the Constitutions meaning-its true meaning-apart from what judges and scholars say it means. What we see here, then, are differing styles of constitutional argument and varying approaches to constitutional decision-making. In the end we are brought back to one question: How is the Constitution to be interpreted and applied in modern America?