The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded 9780822395386

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The Constitutional Jurisprudence of the Federal Republic of Germany

∂

The Constitutional Jurisprudence of the Federal Republic of Germany thir d e dition, r e v ise d a n d e x pa n de d

Donald P. Kommers and Russell A. Miller With a New Foreword by Justice Ruth Bader Ginsburg

Duke University Press

Durham and London

2012

© 2012 Duke University Press All rights reserved. Printed in the United States of America on acid-free paper ∞ Designed by C. H. Westmoreland Typeset in Arno Pro by Westchester Publishing Ser vices Library of Congress Cataloging-in-Publication Data Kommers, Donald P. The constitutional jurisprudence of the Federal Republic of Germany / Donald P. Kommers and Russell A. Miller. — 3rd ed., rev. and expanded / foreword to the 3rd ed. by Justice Ruth Bader Ginsberg. p. cm. Includes bibliographical references and index. isbn 978- 0-8223-5248-8 (cloth : alk. paper) — isbn 978- 0-8223-5266-2 (pbk. : alk. paper) 1. Constitutional law— Germany—Cases. 2. Judicial review— Germany—Cases. I. Miller, Russell A., 1969– II. Ginsburg, Ruth Bader. III. Title. KK4446.7.K66 2012 342.43—dc23 2012011594

∂ For Nancy — donald p. kommers

For Theresa, who gave me Germany — russell a. miller

Contents ∂ foreword to the third edition: Justice Ruth Bader Ginsburg xi preface to the third edition xiii ac know ledg ments xvii note on translation and judicial opinions xxi abbreviations xxv

∂ Part I German Constitutionalism 1. The Federal Constitutional Court 3 Origin 4 Jurisdiction 10 Institution 17 Process 25 Judicial Review in Operation 33 Conclusion 40

2. The Basic Law and Its Interpretation 42 New Constitutionalism of the Basic Law 43 Nature of the Polity 48 Theories of the Constitution 55 Theory of Basic Rights 59 Interpretive Modes and Techniques 62 Sources of Interpretation 70 Conclusion 75

∂ Part II Constitutional Structures and Relationships 3. Federalism 79 Territorial Organization 80 Doctrine of Federal Comity 90 Apportionment and Distribution of Revenue 95 Local Self-Government 104 Bundesrat, Reform Gridlock, and Modern Federalism 110

viii CONTENTS Division of Legislative Power 120 Cooperative Federalism 138 Implementation of Federal Law 143 Conclusion 150

4. Separation of Powers 152 Executive-Legislative Relations 153 Judicial versus Legislative Authority 164 Delegation of Legislative Power 175 Foreign and Military Affairs 189 Conclusion 214

5. Political Representation and Democracy 216 Parliamentary Democracy 216 Elections and Voting 238 Party State and Political Spending 269 Militant Democracy 285 Conclusion 300

6. Jurisprudence of the Open State 302 Basic Law and International Law 302 Basic Law and European Law 325 Conclusion 352

∂ Part III Basic Rights and Liberties 7. Human Dignity, Personal Liberty, and Equality 355 Dignity of Persons 356 Right to Life 373 Right to Personality 399 Equality 419 Conclusion 439

8. Freedom of Speech, Press, and Art 441 A Jurisprudence of Balancing 442 Reputational Interests and Offensive Speech 460 Resocialization, Privacy, Truth-Telling, and Assembly 479 Freedom of the Press and Broadcasting 502 Artistic and Academic Freedom 519 Conclusion 536

CONTENTS ix

9. Religion, Conscience, and Family Rights 538 Free Exercise of Religion 539 Minority Religions 553 Religious Practices and Symbols in Public Schools 566 Taxation, Autonomy, and Religious Societies 590 Marriage and Family Rights 600 Conclusion 620

10. Economic Liberties and the Social State 622 Nature of the Economic System 623 Right to Property 630 Occupational and Associational Rights 659 Reunification and Economic Liberties 685 Conclusion 711

appendix a: chronological chart of the justices 713 appendix b: biographical sketches of presidents and vice presidents 717 notes 725 table of cases 833 index 847 permissions 871

Foreword to the Th ird Edition ruth bader ginsburg Associate Justice, Supreme Court of the United States

∂ Exposing laws to judicial review for constitutionality was once uncommon outside of the United States. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. The Constitutional Court of the Federal Republic of Germany has been recognized as a paradigm in this regard.1 Just as U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measur ing ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. “Wise parents do not hesitate to learn from their children,” U.S. Circuit Judge Guido Calabresi observed, noting as illustrative the fi rst edition of The Constitutional Jurisprudence of the Federal Republic of Germany.2 A concrete example. I coauthored the Brief for the Appellant in Reed v. Reed, 404 U.S. 71 (1971), the fi rst case in which the U.S. Supreme Court, in all its long history, ever declared a statute discriminating against women unconstitutional. Reed concerned an Idaho statute that directed: As between persons equally entitled to administer a decedent’s estate, “males must be preferred to females.” The Idaho Supreme Court had upheld the law against an equal protection challenge, reasoning that nature itself had established the gender-based distinction and that the preference for males conserved judicial resources. The Reed brief contrasted two decisions in which the then West German Constitutional Court invalidated similar gender classifications. The fi rst German decision, rendered in 1959, involved provisions of the German Civil Code declaring “if parents are unable to agree, father decides,” and mandating preference for the father as representative of the child.3 Holding both provisions incompatible with the constitution’s equality norm, the German court rejected alleged differences in lifestyles and administrative convenience as justifications for the discriminatory classifications. The second decision, announced in 1963, involved preferences for sons over daughters in agrarian inheritance law. In that instance, the German court held unconstitutional a classification resting on the assumption that men are better equipped than women to manage property. 1. See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law, 1st ed. (New York: Foundation Press, 1999), 204. 2. United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring). 3. BVerfGE 10, 59 (1959).

xii For ewor d to the Thir d Edition

I did not expect our Supreme Court to mention the German decisions, but thought they might have a positive psychological effect. Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: “How far behind can we be?” 4 I consulted foreign and comparative legal materials in my advocacy endeavors, as the Reed brief illustrates, and I continue to do so as a judge. Foreign opinions, of course, are not authoritative; they set no binding precedent for the U.S. judiciary. But they can add to the store of knowledge relevant to the solution of trying questions. No doubt, we should approach foreign legal materials with sensitivity to our differences and imperfect understanding of the social, historical, political, and institutional background from which foreign opinions emerge. But awareness of our limitations should not dissuade us from learning what we can from the experience and wisdom foreign sources may convey. 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. In addition to thoroughgoing updating, the third edition contains considerable new material and substantially recast sections. Entirely new, Chapter 6 deals with the sometimes intricate relationship between German constitutional law, on the one hand, and international and European law, on the other hand. Chapter 10, on social and economic rights, includes important property and occupational rights cases arising out of Germany’s reunification. For the fi rst time, Germany’s equality jurisprudence, featured in Chapter 7, is treated independently. Of par ticu lar note, the authors discuss the Basic Law’s requirement that the state actively pursue the achievement of gender equality through positive measures. The emphasis on substantive equality reflects a trend vibrant abroad but not similarly embraced in the United States. Federalism reforms made between 2003 and 2009 are described in Chapter 3. Chapters 8 and 9 take up developments in recent years in Germany’s free speech and religious liberty jurisprudence. Finally, in sections of several chapters, the third edition explores the Federal Constitutional Court’s attempts to balance competing liberty and security interests in the post–9/11 world. Cases presented on this trying and vitally important topic contrast, sometimes strikingly, with current U.S. jurisprudence. Brought right up to the moment by Professors Kommers and Miller, 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.

4. “A Conversation with Justice Ruth Bader Ginsburg,” University of Kansas Law Review 53 (2005): 957, 961.

Preface to the Th ird Edition ∂ The fi rst edition of this path-breaking book appeared in 1989, the year in which the Federal Republic of Germany celebrated the fortieth anniversary of its constitution, designated officially as the Basic Law (Grundgesetz). Adopted in 1949, the Basic Law marked the beginning of a new German experiment in constitutional democracy. A key feature of this experiment was the Basic Law’s provision for the creation of a constitutional court with vast powers of judicial review over legislative acts and other governmental activities. Two years later, on 12 March 1951, in compliance with this mandate, West Germany’s fi rst governing coalition enacted the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz; hereafter referred to as the fcca), authorizing the tribunal’s establishment and providing for the election of its original members. From the moment of its inception, the Federal Constitutional Court (Bundesverfassungsgericht) embraced a robust interpretation of the powers granted to it by the Basic Law. Few realized at the time that the Constitutional Court would play a vital role in shaping the politics and public philosophy of postwar Germany. Fewer still anticipated the Court’s evolution into one of the world’s most powerful and influential tribunals, serving as a model, alongside the U.S. Supreme Court, for other liberal democracies attracted by the prospect of placing fundamental law under the protection of independent courts of justice. The publication of this book’s fi rst edition coincided with comparative constitutional law’s emergence as a subject of serious scholarly inquiry. It was also a time when constitutional courts created in the post–World War II period were beginning to seriously engage one another’s jurisprudence as an aid to the interpretation of their respective constitutions. Already by 1980 Germany’s Federal Constitutional Court stood out as one of the most prominent of these postwar tribunals, not only for the fertility of the ideas folded into its constitutional decisions but also for the appeal of its jurisprudence beyond Germany’s borders. But at the time few of the Court’s decisions were accessible in English. The fi rst edition sought to fi ll this gap. One of its purposes was to bring the Constitutional Court’s leading decisions to the attention of English-speaking readers. The cases featured in translation were selected in part for their relevance to prominent areas of constitutional adjudication in the United States. The relevance seemed warranted by the similarities in the rights, values, and institutions protected by two of the world’s most advanced constitutional democracies. Yet, with their differing perspectives on liberty and democracy—born of distinct social, legal, and cultural histories—the German cases provided a challenging contrast to many of the views reflected in the decisions of the American Supreme Court. The fi rst edition exceeded all expectations. Not only was it hailed for the useful role that German constitutional thought could bring to any fresh assessment of

xiv Pr eface to the Thir d Edition

American constitutional doctrine; it also helped to generate interest in the developing field of comparative constitutional law. Owing to the book’s enthusiastic reception in the United States and abroad, a second edition was published in 1997. While adhering to the basic structure of the original volume, the second edition took into account major constitutional developments arising out of Germany’s reunification as well as the new and groundbreaking cases handed down in the 1990s on freedom of speech, religious freedom, voting rights, and the equality of women in the workplace. It also featured more recent decisions relating to the domestic application of international and European law and the deployment of German military forces abroad. Shortly after the publication of the second edition, the Federal Constitutional Court began publishing on its website English-language summaries and full translations of leading decisions in a wide variety of subject areas. By then, too, a large body of commentary on various aspects of German constitutional law was available in dozens of Anglo-American and other English-language journals and periodicals. For these reasons, it seemed initially that there would be no need for a third edition. Yet, despite the passage of time, Constitutional Jurisprudence continued to enjoy wide use in classes and seminars on German and comparative constitutional law, just as it continued to be consulted by constitutional scholars and judges alike in the United States and elsewhere. And so, encouraged by many friends and colleagues, and with the fi rst-time collaboration of Russell Miller as coauthor, work started on a new, updated edition. It was a long and arduous exercise. More than a decade of proliferating constitutional decisions and commentary had to be taken into consideration, much of it in the original German. Once again, the objective was the production of a single, user-friendly volume that would explain the main principles of the Basic Law, describe the range and character of constitutional review in Germany, and feature leading judgments of the Federal Constitutional Court in selected areas of its jurisprudence. The cases treated in the third edition have been carefully selected with the hope that they are worthy of reflective comparison with the analogous case law of other advanced constitutional democracies. That the third edition of Constitutional Jurisprudence should appear shortly after the sixtieth anniversary of the Federal Constitutional Court’s founding is a happy coincidence. Th is edition has been greatly expanded and reorganized to account for new developments in the jurisprudence of free speech, religious liberty, elections and voting, international affairs, and executive-legislative relations in the sensitive areas of foreign and military policy. Chapter 5 now includes an extended discussion of constitutional cases and issues arising out of Germany’s response to international terrorism since the 11 September 2001 terrorist attacks in the United States. Chapter 7 contains fresh material on gender discrimination and affi rmative action in a new section on equality. Similarly, recent cases on marriage and the family, including the rights of homosexual and transsexual persons, are taken up in Chapter 9, which considers religion and the rights of conscience. And, in the interest of greater coherence and clarity, several cases included originally in the chapter on dignity and personal liberty have been shifted to the chapter on freedom of speech. Finally, the chapter on

Pr eface to the Thir d Edition xv

economic rights now appears as the last instead of the fi rst chapter in Part III of this book to reflect the sequence of the provisions on fundamental rights in the Basic Law. Initially, in working on this edition, we planned two new chapters to focus respectively on the constitutional law relevant to Germany’s reunification and on the increasingly prominent interplay in the Constitutional Court’s jurisprudence between the Basic Law, European law, and international law. German unity generated numerous constitutional controversies related to electoral law, property rights, land reform, pension law, disbarment proceedings, and the occupational rights of persons dismissed from the civil ser vice and other categories of employment. Each of these controversies raised critical issues under several fundamental rights clauses of the Basic Law, prompting the Court to reexamine some of its earlier rulings under these provisions. To keep the book as a manageable single volume, however, we decided to omit this chapter and limit our discussion of the Court’s discrete reunification jurisprudence to a concluding section of Chapter 10. We think the constitutional themes and issues with which the Court grappled in relation to “economic liberties and the social state” are representative of much of the rest of its reunification jurisprudence. On the other hand, we felt that it was absolutely essential to include a new chapter—Chapter 6 in this edition—on the nexus between German constitutional law and international law and European law. A central feature of the Basic Law is its openness to participation in and constitutional engagement with supranational legal orders such as the European Union and the Council of Europe. Article 23 of the Basic Law, for example, commits Germany to the further development of the European Union, just as other provisions permit the transfer of sovereign powers to international organizations (Article 24) and incorporate into domestic law the general rules of international law (Article 25). Several of the cases featured here reveal the Court’s struggle to respect the domestic constitutional order created by the Basic Law as well as the Basic Law’s commitment to internationalism. Needless to say, these interests sometimes seem irreconcilable, perhaps most significantly when the Court has considered the force that decisions of supranational and international tribunals will have in the German legal order. Of capital importance are the Court’s Maastricht Treaty and Lisbon Treaty cases. In both judgments, the Constitutional Court raised questions about the amending treaties’ compatibility with the essential and unamendable features of Germany’s constitutional democracy. Moreover, in Lisbon, the Court set procedural and substantive limits on the further transfer of German sovereignty to the European Union. Finally, we have made two changes in the appendices. We thought it would be useful in this edition to provide brief biographical sketches of all the presidents and vice presidents who have been selected to preside over the Court’s First and Second Senates, which are independent of each other and speak in the name of the German people. These short biographies are revealing; they tell us much about the personalities of the Court’s presiding justices and the change in the pattern of their recruitment over the years. Until 1987 the president and vice president served as the presiding justices respectively of the First and Second Senates. In recent decades, however, this

xvi Pr eface to the Thir d Edition

practice has not held up. As the biographical sketches in Appendix B disclose, a president or vice president may be elected to preside over the First or Second Senate. Finally, we are dropping the appendix that included selected provisions of the Basic Law. The relevant constitutional provisions at issue in our discussion of the Court’s decisions are now presented in the various chapters and are, in any case, easily available in English-language translations on the Internet. In par ticu lar, we have relied on the official English-language version published by the German Bundestag. The most recent version of this translation by Christian Tomuschat and Donald Kommers was produced in cooperation with the Bundestag’s Language Ser vice Department. It is available at https://www.btg-bestellservice.de/pdf/80201000.pdf.

Acknowledgments ∂ Each of us used the second edition and early drafts of the third edition in our advanced seminars on German and comparative constitutional law. The response of our students—mainly doctoral candidates in political science, third-year law students, and foreign law graduates pursuing ll.m. degrees in international human rights law—has been enthusiastic, reinforcing our determination to go forward with this edition. Their critical engagement with the cases and issues featured in the volume helped us greatly to rethink certain aspects of its organization and analysis. We have benefited tremendously from the help and advice of several legal scholars, political scientists, and other academicians. For their generous assistance and helpful comments on this and previous editions, we owe a special word of thanks to Winfried Brugger, David Currie, and Walter Murphy. We regret that we will not be able to share the fruits of this effort with these departed friends and colleagues. We have relied on the advice and inspiration of other colleagues and peers, including David Beatty, Armin von Bogdandy, Michael Bothe, Sujit Choudhry, David Danelski, Erhard Denninger, Edward Eberle, Mary Ann Glendon, H. Patrick Glenn, Ran Hirschl, Vicki Jackson, Alexandra Kemmerer, Pierre Legrand, Ralf Michaels, Christoph Möllers, Vlad Perju, Peter Quint, Georg Ress, Kim Lane Scheppele, Bernhard Schlink, Eberhard Schmidt-Assman, Miguel Schor, Anja Seibert-Fohr, Torsten Stein, Klaus Stern, Christian Tomuschat, Mark Tushnet, Dieter Umbach, Uwe Wesel, Ingrid Wuerth, and Peer Zumbansen. For their significant assistance we would also like to thank these former and sitting justices of the Federal Constitutional Court: Susanne Baer, Ernst Benda, BrunOtto Bryde, Udo Di Fabio, Dieter Grimm, Renate Jaeger, Paul Kirchhof, Jutta Limbach, Gertrude Lübbe-Wolff, Rudolf Mellinghoff, Lerke Osterloh, Andreas Paulus, Helga Seibert, and Helmut Steinberger. We are also grateful to the Constitutional Court’s administrative directors Karl-Georg Zierlein (1973–98) and Elke-Luise Barnstedt (1999–2010). They graciously coordinated our visits to the Court, helping us secure access to the Court’s justices, its library, its archives, statistical information, and otherwise inaccessible decisional materials. Matching their generosity were Volker Roth-Plettenberg (the Court’s head librarian since 1992) and the Court’s chief of protocol Margret Böckel. We also received valuable assistance from so many of the Court’s clerks that we hesitate to single out any of them for fear that we will overlook someone to whom we are no less grateful. Still, it would be an injustice to fail to mention the helpful, patient, and inspiring clerks with whom we have had extensive contact, especially Felix Hanschmann, Karen Kaiser, Stefan Magen, Nele Matz-Lück, Felix Merth, Rainer Nickel, Anne Sanders, Heiko Sauer, and Christian Walter. For reading and commenting on parts of the third edition, we wish to thank Stefan Brink, Ulrike Bumke, Paolo Carozza, Edward Eberle, Thomas Flint, Richard

xviii Ac know ledg ments

Garnett, Rainer Grote, Arthur Gunlicks, Matthias Hartwig, Karen Kaiser, V. Bradley Lewis, James McAdams, Rainer Nickel, Frank Schorkopf, Anja Seibert-Forh, Christopher Whelan, Christopher Witteman, Ingrid Wuerth, Diana Zacharias, and Peer Zumbansen. Much of the work on this volume was carried out at Heidelberg’s Max Planck Institute of Comparative and International Public Law. We would like to thank the Institute’s current and former directors—Rudolf Bernhardt, Armin von Bogdandy, Karl Doehring, Jochen Abr. Frowein, and Rüdiger Wolfrum—for their generosity in providing us, at different times, with fi nancial support, office space, and ready access to the Institute’s splendid library and unsurpassed bibliographical resources. It is not an exaggeration to say that this effort would not have been possible without the camaraderie, kindness, hospitality, and stimulation that we have enjoyed while resident at the Institute, one of the fi nest research settings in the world. We have especially benefited from scholarly exchanges with the Institute’s remarkable research staff and frequent guests, including Jürgen Bast, Jochen von Bernstorff, Pia Carazo, Stephanie Dagron, Philipp Dann, Sergio Dellavalle, Thomas Giegerich, Matthias Goldmann, Rainer Grote, Alexandra Guhr, Michael Hahn, Matthias Hartwig, Holger Hestermeyer, Mahulena Hofmann, Cristina Hoss, Daniel Klein, Steven Less, Emmanuelle Mantlik, Nele Matz-Lück, Mariela Morales-Antoniazzi, Werner Morvay, Georg Nolte, Karin Oellers-Frahm, Stefan Oeter, Dagmar Richter, Anja Seibert-Fohr, Silja Vöneky, Nicola Wenzel, Diana Zacharias, and Andreas Zimmerman. Donald Kommers spent the spring semester of 2009 as the Axel Springer Berlin Prize Fellow at the American Academy in Berlin where he continued to reflect and write on aspects of German constitutional law and politics. For that support he is grateful to Gary Smith, the Academy’s gracious and capable director. Russell Miller was awarded a Fulbright Senior Research Fellowship in 2009–10. The fellowship permitted him to work on this and other comparative law projects while in residence at Heidelberg’s Max Planck Institute. He is indebted to the Fulbright Commission for that honor and generous support. Both authors have been supported and enriched in this work by their home institutions. Russell Miller wishes to thank Deans Jack Miller and Donald Burnett of the University of Idaho College of Law. Jack Miller has been especially supportive, as a friend and mentor, during Russell Miller’s academic career. Russell Miller also wishes to thank Deans Rodney Smolla, Mark Grunewald, and Nora Demleitner of the Washington & Lee University Law School. They provided encouragement and support. Russell Miller also received support for this work from the Washington & Lee Frances Lewis Law Center and the Washington & Lee Transnational Law Institute, the latter of which is directed by his cherished colleague Mark Drumbl. Donald Kommers is grateful to Deans David Link and Patricia O’Hara for all their kindness during this book’s preparation. He also wishes to thank Roger Jacobs and Edward Edmunds, Notre Dame’s head law librarians who spared no expense in procuring the materials needed for this project. Other Notre Dame law librarians to whom he owes thanks are Patti Ogden, Warren Rees, Dwight King, Carmela Kinslow, and Mary

Ac know ledg ments xix

Cowsert; for technical assistance in getting him out of computer glitches, he thanks Dan Manier, Jeff Morgan, and Susan Good. As professor emeritus, he is particularly grateful to Thomas Burish, University of Notre Dame Provost, for generously providing him with the logistical support needed for the completion of this project. For student assistance we are grateful to Ariel Brio, Brian Burchett, Frank Colucci, Melissa Brown, Michael Chambliss, Colin Littlefield, Peggy Fiebig, Jonas Callis, and Karolina Kurzawa. Matthias Schmidt came to our aide in the last years of our work on this book and, to the very end, remained a reliable assistant, insightful reader, and encouraging friend. For two years during our early work on the third edition we were assisted by Jeremy Rabideau, a Notre Dame doctoral candidate in political science. Jeremy competently and professionally dispatched a broad range of indispensable assignments, including the writing of summaries for scores of the Constitutional Court’s decisions and of the developing research from English and German language scholarship and literature. We are thankful for his role in this effort. For secretarial assistance in the Notre Dame Law School we are grateful to Lu Ann Tate, Tina Jankowski, Rebecca Ward, and the indomitable Debi McGuigan-Jones. Not to be overlooked is the wonderful cooperation we have received from Duke University Press. In particular, we would like to acknowledge the support of Duke’s senior editor, Valerie Millholland. We are especially thankful for her patience in waiting longer than expected for the arrival of the third edition manuscript. For their timely and efficient navigation of the manuscript through the stages of editing, design, and production we are most grateful to Miriam Angress, Nancy Hoagland, and Debbie Masi. Finally, we wish to thank Justice Ruth Bader Ginsburg of the U.S. Supreme Court for graciously consenting to write the foreword to this edition.

Note on Translation and Judicial Opinions ∂ Edmund Wilson once remarked that “the best translations—the Rubaiyat, for example—are those that depart most widely from the originals—that is, if the translator himself is a poet.” However sound such advice might be with respect to the translation of novels and poems, it is normally bad advice when rendering foreign legal documents into English. The judicial opinions featured in this volume are collegial in nature. They are institutional products often pounded out on the anvil of negotiation and compromise. Personalized dissenting opinions on the Federal Constitutional Court were not allowed until 1971 and since then, as now, they are relatively rare. Less than 1 percent of the Court’s published decisions have featured dissenting opinions. The deliberation and trade-offs that drive this penchant for consensus lead to judicial opinions often marked by abstract, repetitious, and convoluted prose. The job of the translator is to render such prose as much as possible into idiomatic English and to produce approximate English equivalents to the legal and technical terminology of the original German. Th is has been an arduous task for all the translators whose work contributed to the English-language case excerpts published in this volume. The fi nal result, we trust, are translations that are both readable and faithful representations of German constitutional thought. As noted in the preface to this edition, English-language translations of excerpts from the most noteworthy decisions of the Federal Constitutional Court are less rare today than they were when the first edition was published. We, the authors, translated several judgments featured in this edition; other translations were prepared for us by Mark Hepner, Peggy Fiebig, Matthias Schmidt, Catriona Thomas, and Albert Wimmer. But no one has done more to expand English-language access to the Court’s jurisprudence than Hedwig Weiland, the Constitutional Court’s staff translator. She has masterfully supervised the translation of scores of the Court’s most important decisions, sometimes on breathtakingly short notice. A number of these translations have been reproduced here, often with extensive adaptation by us. These editorial changes reflect the very different aims of her project and ours. While the Court strives to produce the most accurate translations of its decisions, we often have sought to strike the all-too-elusive balance between faithfulness to the original German and literary grace. Of course, the official decisions always remain the Court’s published German-language opinions. The Court has generously granted us the right to make use of its translations in this book. And we have relied on other translations produced under Ms. Weiland’s supervision to expedite and enrich our work. Th is collaboration has required us to correspond frequently with her. She has consistently been a gracious and insightful interlocutor. We owe her much, but above all she has our enduring respect. The opinions of the Federal Constitutional Court compete, in their length, with those of the U.S. Supreme Court. Many of them exceed five thousand words. But

xxii Note on Tr anslation and Judicial Opinions

they follow a uniform structure. The typical opinion begins with a listing of the leading sentences (Leitsätze) or propositions of law advanced in the judgment. The caption following the Leitsätze identifies the senate deciding the case, along with the date of the decision, the nature of the proceeding, and a short statement of the ruling (Entscheidungsformel). Subsequently and sequentially, in major parts of the case, the opinion proceeds to describe the factual background of the case, including the parties in dispute, the constitutional issue or issues up for decision, and the statutes or regulations requiring interpretation. It continues with a detailed presentation of the arguments on both sides, fi rst on behalf of the petitioner, then on behalf of the respondent. The opinion concludes with sections addressing the Court’s jurisdiction over the case and, fi nally, the Court’s reasoning on the merits. One practice in par ticu lar distinguishes German judicial decisions from those handed down in common-law jurisdictions. German cases do not reveal the names of the parties before the courts, a convention that also prevails at the Federal Constitutional Court. Cases are cited by number, date, and jurisdictional category. An example is the East German Disbarment Case (1995; no. 10.15) in which East German lawyers fi led constitutional complaints contesting their disbarment following reunification. The case appears as Nr. 11 in Volume 93 at page 213 of the official reports (Entscheidungen des Bundesverfassungsgerichts), cited as 93 BVerfGE 213 (1995). The opinion begins with the caption, “Judgment of the First Senate of 9 August 1995,” immediately followed by reference to “1 BvR 2263/94.” The numbers refer to the 2,263rd constitutional complaint (the jurisdictional category) fi led with the First Senate in the year 1994. (The case was combined with the similar complaints of two other lawyers.) The unnamed lawyer challenging the constitutionality of his disbarment is described simply as the “complainant.” We found it convenient, however, to label this case East German Disbarment to identify its subject matter. It is a common practice among constitutional scholars to name a case by its main topic (e.g., Abortion I Case), its institutional focus (e.g., Bundesrat Case), its documentary source (e.g., Lisbon Treaty Case), or by some other prominent feature such as the geographic location of a major event (e.g., Lebach Case) or the name of the prominent public figure involved (e.g., Princess Soraya Case or Princess Caroline of Monaco II Case). The translations in this book are confi ned largely to selected passages from the Court’s reasoning, preceded by our bracketed summary of the facts of the case and its procedural posture. The original opinions are lavish with citations to the Court’s existing decisions and to the secondary literature, including the Court’s rehearsal of the views advanced in academic treatises and commentaries on the Basic Law. With rare exceptions we have omitted string citations to the Court’s decisions and references to the secondary literature. We have translated the terms Beschwerdeführer and Antragsteller variously as “complainant,” “plaintiff,” and “petitioner.” Complainant refers to an entity ( juristic person or association) or natural person who fi les a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court. All other proceedings before the Constitutional Court involve petitions or referrals by legislators, other public officials, and governmental entities. A petitioner

Note on Tr anslation and Judicial Opinions xxiii

is an agency or official who initiates one of these proceedings. We often label the plaintiff as the litigant before an ordinary court where the latter refers a constitutional issue in the pending case to the Federal Constitutional Court in an action known as a concrete judicial review proceeding. Other practices and conventions followed by the Court in deciding constitutional cases are described in more detail in Chapter 1.

Abbreviations ∂ bgb bgb1 bgh BGHSt bghz brd BVerfG BVerfGE BVerfGG BVerfGK cdu csu DIN DSU dkp dm DRiG ealg ecthr EEC EFSF eu EuGRZ fap fdp

Bürgerliches Gesetzbuch (Civil Code) Bundesgesetzblatt (Federal Law Gazette [statutes at large]) Bundesgerichtshof (Federal Court of Justice) Entscheidungen des Bundesgerichtshof in Strafsachen (Decisions of the Federal Court of Justice in Criminal Matters) Entscheidungen des Bundesgerichtshof in Zivilsachen (Decisions of the Federal Court of Justice in Civil Matters) Bundesrepublik Deustschland (Federal Republic of Germany) Bundesverfassungsgericht (Federal Constitutional Court) Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act [FCCA]) Kammerentscheidungen des Bundesverfassungsgerichts (Chamber Decisions of the Federal Constitutional Court) Christlich-Demokratische Union (Christian Democratic Union) Christlich-Soziale Union (Christian Social Union) Deutsches Institute für Normung (German Institute for Standardization) Deutsche Soziale Union (German Social Union) Deutsche Kommunistische Partei (German Communist Party) Deutsche Mark (German Mark) Deutsches Richtergesetz (German Judiciary Act [GJA]) Entschädigungs- und Ausgleichsleistungsgesetz (Compensation and Equalization Payments Act) European Court of Human Rights European Economic Community European Financial Stability Facility European Union Europäische Grundrechte-Zeitschrift (European Journal of Basic Rights) Freiheitliche Deutsche Arbeiterpartei (Free German Workers Party) Freie Demokratische Partei (Free Democratic Party)

xxvi Abbr eviations

gg Grundgesetz (Basic Law) GO-BVerfG Geschäftsordung des Bundesverfassungsgerichts (Rules of Procejsc kpd kug nato nl npd pds RGSt rgz sed spd srp StGB UN weu

dure of the Federal Constitutional Court) Judicial Selection Committee Kommunistische Partei Deutschlands (Communist Party of Germany) Kunsturheber-rechtsgesetz (Art Copyright Act) North Atlantic Treaty Organization National List Nationaldemokratische Partei Deutschlands (National Democratic Party) Partei des Demokratischen Sozialismus (Party of Democratic Socialism) Entscheidungen des Reichsgerichts in Strafsachen (Decisions of the [Reich] Imperial Court of Justice in Criminal Matters) Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the [Reich] Imperial Court of Justice in Civil Matters) Sozialistische Einheitspartei Deutschlands (Socialist Unity Part of Germany) Sozialdemokratische Partei Deutschlands (Social Democratic Party) Sozialistische Reichspartei (Socialist Reich Party) Strafgesetzbuch (German Penal Code) United Nations Western European Union

1 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.1 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,”2 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.3 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 (Bundesfi nanzhof), 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)4 who staff the German judiciary are unlikely to produce the independence of mind typical of judges in the Anglo-American tradition. German

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judges usually enter the judiciary immediately after the conclusion of their legal training,5 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.6 Although this portrayal of the typical German judge is less true today than it was fi ft y 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.7

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,8 constitutional review provided the mechanism for defi ning 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.9 Constitutional review in its modern form emerged in the nineteenth century.10 Again, it served as a principal tool for the resolution of constitutional disputes among

The Feder al Constitutional Court 5

and within the individual states of the German Empire and often between the states and the national governments.11 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 staffed 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 confl icts 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.12 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.”13 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.14 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.15 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.

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Supreme Court, published a major legal treatise in defense of judicial review.16 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). Th is 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).17 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,18 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,19 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.20 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.21 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.22 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.”23 State courts during the Weimar period held fi rm to the German tradition that judges are subject to law and have the duty to apply it even in the face of confl icting 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.24 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

The Feder al Constitutional Court 7

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.25 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.26 While they were familiar with the American system of judicial review and were guided by the American experience in shaping their constitutional democracy,27 Germans relied mainly on their own tradition of constitutional review. The groundwork for the Basic Law was prepared in a resplendent nineteenthcentury 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 fi rst draft of a constitution to expedite the work of the ensuing constitutional convention known as the Parliamentary Council.28 The Herrenchiemsee proposals, which included provisions for a national constitutional tribunal,29 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.30 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 defi ning the powers of the proposed constitutional court, the Herrenchiemsee drafters relied mainly on the Weimar era’s State High Court.31

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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.32 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.33 Parliamentary Council. The debate over the proposed court’s structure continued in the constitutional assembly, officially known as the Parliamentary Council (Parlamentarischer Rat).34 It all boiled down to a dispute over the nature of the new tribunal. Should it be like Weimar’s State High Court and serve mainly as an organ for resolving confl icts between branches and levels of government (i.e., a court of constitutional review)? Or should it combine such jurisdiction with the general power to review the constitutionality of legislation (i.e., a court of judicial review)? In line with the Herrenchiemsee plan, the framers fi nally agreed to create a constitutional tribunal independent of other public-law courts, but they disagreed over how much of the constitutional jurisdiction listed in the proposed constitution should be conferred on it as opposed to other high federal courts. The controversy centered on the distinction between what some delegates regarded as the “political” role of a constitutional court and the more “objective” lawinterpreting role of the regular judiciary. Some delegates preferred two separate courts—one to review the constitutionality of laws ( judicial review) and the other to  decide essentially political disputes among branches and levels of government (constitutional review). Others favored one grand, multipurpose tribunal divided into several panels, each specializing in a par ticu lar area of public or constitutional law. The latter proposal was strenuously opposed by many German judges, who were alarmed by any such mixing of law and politics in a single institution.35 The upshot was a compromise resulting in a separate constitutional tribunal with exclusive jurisdiction over all constitutional disputes, including the authority to review the constitutionality of laws. The fi nal version of the Basic Law extended the newly created Federal Constitutional Court’s jurisdiction to twelve specific categories of disputes (Article 93 (1)) and “such other cases as are assigned to it by federal legislation” (Article 93 (2)). Originally the Court’s jurisdiction could be invoked only by federal and state governments (i.e., the chancellor or a Land minister-president and his or her cabinet), parliamentary political parties, and, in certain circumstances, regular courts of law.

The Feder al Constitutional Court 9

The framers rejected the Herrenchiemsee proposal to confer on private parties standing to petition the Court in defense of their constitutional rights, a decision in line with the general practice of constitutional review in Weimar Germany and Austria. (As noted below, however, the individual right to petition the constitutional court was restored by legislation in 1951 and incorporated into the Basic Law in 1969.) The two main parties in the Parliamentary Council favored these limited rules of access, the Social Democratic Party of Germany (spd) because the limitations would protect political minorities in and out of the Parliament, and the Christian Democratic Union (cdu) because its members saw the limitations as equally useful in preserving German federalism.36 The interests of both political parties were also reflected in judicial selection clauses specifying that the Federal Constitutional Court shall consist of “federal judges and other members,” half “to be elected by the Bundestag and half by the Bundesrat” (Article 94). Christian Democrats were thus assured of a strong “federal” presence on the Court, just as Social Democrats could take comfort in knowing that the Court would not be dominated by professional judges drawn wholly from a conservative judiciary. Impatient to get on with the work of producing a constitution, the framers stopped there, leaving other details of the Constitutional Court’s organization and procedure to later legislation. But the Court had been given a breathtaking mandate, both in scope and in depth; its jurisdiction was unlike any German court that had preceded it and at the time was unique in comparison with other high courts of judicial review around the world. Legislative Phase. Another two years of parliamentary debate were necessary after the promulgation of the Basic Law to produce the enabling statute creating the Federal Constitutional Court. As had been the case in the Parliamentary Council, the shape of the new tribunal represented compromises between the confl icting perspectives of the cdu-led federal government, the spd opposition, and the states (represented in the Bundesrat) on such matters as judicial selection and tenure, the ratio of career judges to “other members,” the qualifications of judicial nominees, the Court’s size and structure, and the degree of control over the Court to be exercised by the Federal Ministry of Justice (Bundesministerium der Justiz).37 All participants in the debate recognized that the Court’s political acceptance would depend on broad agreement on these matters across party and institutional lines. Finally, after months of intense negotiation within and between the Bundestag and the Bundesrat, a bill emerged with the overwhelming support of the major parliamentary parties and all branches of government. The result was the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) of 12 March 1951 (hereafter referred to as the fcca).38 In its current version, the fcca includes 121 operative sections that codify and flesh out the Basic Law’s provisions relating to the Court’s organization, powers, and procedures, important features of which are discussed below. Representing numerous political compromises, the fcca 1) lays down the qualifications and tenure of the

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Court’s members, 2) specifies the procedures of judicial selection, 3) provides for a two-senate tribunal, 4) enumerates the jurisdiction of each senate, 5) prescribes the rules of access under each jurisdictional category, 6) defi nes the authority of the plenum (both senates sitting together), and 7) establishes the conditions for the removal or retirement of the Court’s members.

jurisdiction The U.S. Constitution contains no express reference to any judicial power to pass upon the constitutional validity of legislative or executive decisions. In the seminal case Marbury v. Madison (1803) Chief Justice John Marshall derived the doctrine of judicial review by inference from the nature of a written constitution and the role of the judiciary.39 The Basic Law, by contrast, leaves nothing to inference. It enumerates all of the Constitutional Court’s jurisdiction. The Court is authorized to hear cases involving the following actions: Forfeiture of basic rights (Article 18) Constitutionality of political parties (Article 21 (2)) Review of election results (Article 41 (2)) Impeachment of the federal president (Article 61) Disputes between high state organs (Article 93 (1) [1]) Abstract judicial review (Article 93 (1) [2]) Federal-state confl icts (Articles 93 (1) [3] and 84 (4)) Individual constitutional complaints (Article 93 (1) [4a]) Municipal constitutional complaints (Article 93 (1) [4b]) Other disputes specified by law (Article 93 (2)) Removal of judges (Article 98) Intrastate constitutional disputes (Article 99) Concrete judicial review (Article 100 (1)) Public international law actions (Article 100 (2)) State constitutional court references (Article 100 (3)) Applicability of federal law (Article 126)

The Court thus has the authority not only to settle conventional constitutional controversies but also to try impeachments of the federal president (Bundespräsident), to review decisions of the Bundestag relating to the validity of an election, and to decide questions critical to the defi nition and administration of federal law. To these constitutionally articulated responsibilities the Bundestag has added another prominent jurisdictional power; Article 32 of the fcca permits the Court to issue a temporary injunction in par ticu lar circumstances. Each of the jurisdictional categories listed above is assigned to either the First or Second Senate. The most important of these categories involve the constitutional complaints brought by ordinary citizens, concrete judicial review, requests for temporary

The Feder al Constitutional Court 11

table 1. Federal Constitutional Court Cases, 1951–2011 Proceeding Constitutional Complaints Concrete Judicial Review Requests for Temporary Injunction Disputes between Federal Organs Abstract Judicial Review Federal-State Confl icts Unconstitutional Parties Other Proceedings Totals

Docketed

Decided

188,187 3,511 2,370

166,608* 1,261** 1,847

180 172 45 8 545 195,018

97 109 27 5 291 170,245

* Constitutional complaints decided by the senates: 4,034. The remainder were decided by three-justice committees/chambers. ** Concrete judicial review cases decided by the senates: 1,043. The remainder were decided by the three-justice chambers.

Sources: “Docketed”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Eingänge nach Verfahrensarten,” available at www.bundesverfassungsgericht.de/organisation/gb2011/A-I-4.html; “Decided”: Bundesverfassungsgericht, “Aufgaben, Verfahren und Organisation—Statistik für das Geschäft sjahr 2011—Erledigungen nach Verfahrensarten,” available at www.bundesverfassungsgericht .de/organisation/gb2011/A-I-5.html.

injunctions, disputes between high organs of the national government, abstract judicial review, federal-state confl icts, and challenges to the constitutionality of political parties—importance here being measured by the number of cases fi led in each category. As Table 1 shows, constitutional complaints make up about 96 percent of the Court’s caseload. As we shall see, however, some of the Court’s most politically important work arises in other jurisdictional areas. Constitutional Complaints. A constitutional complaint may be brought by individuals and entities vested with par ticular rights under the constitution. In this sense the constitutional complaint differs from all other proceedings before the Court (except applications for temporary injunctions), because the other proceedings are limited to governmental entities, certain parliamentary groups, and judicial tribunals. After exhausting all available means to fi nd relief in the other courts,40 persons who claim that the state has violated one or more of their rights under the Basic Law may fi le a constitutional complaint with the Federal Constitutional Court. Constitutional complaints must be lodged within a certain time, identify the offending action or omission and the institution of public authority responsible, and specify

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