THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY Second Edition Donald P. Kommers Duke University Press Durham find London 1997 PART I WEST GERMAN CONSTITUTIONALISM The Federal Constitutional Court, with its sweeping powers of judicial review, is only as old as the Basic Law. To the surprise of many observers this tribunal has developed into an institution of major policy-making importance in the Federal Republic. Judicial review is a relatively new departure in German constitutional history. Postwar German leaders believed that the traditional parliamentary and judicial institutions that had failed to protect the Weimar Constitution were insufficient to safeguard the new liberal democratic order. They created a national constitutional tribunal to serve as a guardian of political democracy, to enforce a consistent reading of the Constitution on all branches and levels of government, and to protect the basic liberties of German citizens. With this decision, German constitution gave up the old positivist idea that law and morality arc separate domains. Constitutional morality would now govern both law and politics. Part t famishes die backdrop to this treatment of German constitutional law and poliq'. It seems useful at the outset to introduce the reader to the powers and organization of the Federal Constitutional Court and to set forth, in one place, a systematic account of the Basic Law and the principles governing its interpretation. Accordingly, chapter i describes the Federal Constitutional Court's origin, structure, powers, and decisional procedures. It also includes an account of important organizational and staff changes diat have taken place over the course of the court's forty-five years of operation. Chapter 2 focuses on the main features of the Basic Law and the principles on which they are grounded. Unlike previous German constitutions, the Basic Law creates a binding order of values having the force of law and enforceable by judicial decision. It also creates a "free democratic basic order" based on individual liberties, equality, majority rule, responsible party government, separation of powers, the rule of law, and the observance by citizens of certain principles of political obligation. The Constitutional Court's function in Germany's judicial democracy is to define, protect, and reconcile these various and often conflicting constitutional values. In performing this task, the court has been a crucial player in German constitutional 2 German Constitutionalism politics. In some areas of constitutional adjudication, its role lias been no less than transfotmative. Gravitating between the poles of judicial activism and restraint, the court has also developed a number of decision-making took designed at least in part to resolve the ongoing tension between democracy and constitutionalism. 1 THE FEDERAL CONSTITUTIONAL COURT The jurisdiction of the United States Supreme Court extends to cases and controversies arising under die Constitution and federal law. Its authority extends even to . private law when the parties in dispute arc citizens of different states. By contrast, I Germany's Federal Constitutional Court, 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 Conti- nental belief that judicial review is a political act, following die 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 die power to declare laws unconstitutional in a special tribunal staffed with judges elected by parliament and widely representative of the political community radier than in a . muitijurisdictional high court of justice dominated by appointed legal technicians. Anodier factor tiiat encouraged the framers of die Basic Law to assign die function of constitutional judicial review to a single court was die traditional sttuc- 1 turc 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 ordinary civil and criminal jurisdiction is vested in another, much larger, system of regular courts.3 All trial and intermediate courts of appeal are Land (state) tribunals; federal courts serve as courts of last resort. The Federal Administrative Court (Bundesverwaltungsgericht), Federal Labor Court (Bundesarbeitsgcricht), Federal Finance Court (Bundesfinanzgcricht), Federal Social Court (Bundessozialgericht), and Federal Court of Justice (Bundesge-richtshof) are at the respective apexes of these judicial hierarchies. Like the appellate courts generally, these tribunals are staffed by a host of judges (125 on die Federal Court of Justice alone) who sit in panels of five. The complexity of this structure and die 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 de- 4 German Constitutionalism Federal Constitutional Court 5 centralized system. The background and professional training of the 20,672 career judges (as of January 1,1993) who staff the German judiciary arc unlikely to produce the independence of mind typical of judges in the Anglo-American tradition. The typical German judge enters the judiciary at the conclusion of his or her legal training, and success is denoted by promotion within the ranks of the judicial bureaucracy. In contrast, the typical American judge is appointed at a later stage of his career, usually after achieving success in public office or as a private lawyer. German judges have been characterized as persons 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 die law as written and with exacting objectivity,4 Although this portrayal of the typical German judge is less true today than it was forty-five 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. origin Historical Antecedents German legal scholars have traditionally distinguished between constitutional review (Vctfassimjjsstreitijjkeit) and judicial review (ricbterliches Pmjungsrttht). Judicial review, die more inclusive term, signifies the authority of judges to rule on die constitutionality of law. Constitutional review, which in Germany antedates judicial review, is associated with Germany's tradition of monarchical constitutionalism, stretching from die 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 tills period (1815-1918), when German constitutional draught pivoted on the concepts of state and sovereignty,5 constitutional review provided the mechanism for defining the rights of sovereign states and their relationship to the larger union incorporating them. 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 1918, and ending with the Basic Law of 1949. Constitutional Review. Constitutional review appeared in embryonic form during the Holy Roman Empire. The need for unity among die principalities of die empire and peace among dieir warring princes prompted Maximilian I in 1495 to create die Rekhskammergericht (Court of the Imperial Chamber), before which the monarchs resolved their differences. By the seventeendi century die Imperial Court and some local courts occasionally enforced the "constitutional" rights of es- tates against crown princes. Compacts or treaties governed their mutual rights and obligations. Constitutional review commenced when diese tribunals enforced—to die extent that their rulings could be enforced—the corporate rights of estates under these documents.6 Constitutional review in its modern form emerged in die ninetccndi century.7 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 government.8 Under Germany's monarchical constitutions, the forum for the resolution of such disputes was usually die parliamentary chamber in which die states were corporately represented. Under Germany's republican constitutions, on the odier hand, die 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 Staatsgerkhtshof. As major agencies of public law commissioned to decide sensitive political issues, these courts were independent of die regular judiciary and were staffed with judges selected by legislators. Like most constitutional courts at the state level before and after the Nazi period, die Staatsgerichtshof was a part-time tribunal whose members convened periodically to decide constitutional disputes. Its jurisdiction included (1) the trial of impeachments brought by parliament (die Reichstag) against die 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) die settlement of constitutional conflicts within and among the separate states as well as between states and the Reich. The court's membership varied according to the nature of the dispute before it; die more "political" die dispute the more insistent was parliament on electing its members.-' These structures and powers, which influenced die shape of die Federal Constitutional Court, highlight three salient features of constitutional review in German history. First, as just noted, an institution independent of die regular judiciary exercises such review. Second, it takes cases on original jurisdiction, deciding them in response to a simple complaint or petition, unfettered by die 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 [it] would not have judges intervening on behalf of citizens against the executive branch of government."10 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 die execution of the state's will once it is made, whereas die latter concerns those organs of government constitutionally obligated to form the state's will." These organs-die constitutionally prescribed units of the political system — and these alone are the subjects of constitutional review. 6 German Constitutionalism Federal Constitutional Court 7 Judicial Review. The doctrine of judicial review, unlike constitutional review, was alien to the theory of judicial decision in Germany.11 A judge's only duty under the traditional German doctrine of separation of powers was to enforce die law as written. About tile mid-ninctecndi century, however, some German legal scholars and judges sought to cultivate ground in which judicial review might blossom. In i860, Robert von Mohi, who was acquainted with the Federalist Papers and die work of the United States Supreme Court, published a major legal treatise in defense of judicial review.1* 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.'4 Jurists attending the meeting recalled provisions of the Frankfurt Constitution (1849) authorizing the Federal Supreme Court (Reichsgericht) to hear complaints by a state against national laws allegedly in violation of the Constitution and even by ordinär)' citizens claiming a governmental invasion of dieir fundamental rights, foreshadowing by a century similar authority conferred on the Federal Constitutional Court. Their views, however, like the provisions of the 1849 Constitution, failed to take root in the legal soil of monarchical Germany (1871-1918).15 The Weimar Republic provided a climate more sympathetic to judicial review. Inspired by the work of the Frankfurt Assembly, the 1919 Constitution established a constitutional democracy undergirded by a bill of rights. The Weimar period also witnessed the continuing influence of the "free law" school (Freitvcbtsschttle) of judicial interpretation,16 marking a significant challenge to die dominant tradition of legal positivism. And although the Constitution remained silent with respect to the power of the courts to review the constitutionality of law,17 judicial review as a principle of limited government enjoyed strong support in the Weimar National Assembly. But, as Hugo Preuss predicted — and warned— die Weimar Constitution's failure expressly to ban judicial review prompted courts to arrogate this power to diemseives.18 In the early 1920s, several federal high courts, including the Reichsgericht, suggested in dicta that they possessed the power to examine die constitutionality of laws.19 On January 15,192.4, deeply disturbed by the swelling controversy over the revaluation of debts, the Association of German Judges confidently announced diat 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.20 Several months later, the Reichsgericht announced that "in principle courts of law are authorized to examine the formal and material validity of laws and ordinances."21 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 Reichsgericht by accepting judicial s, 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 l state and national constitutions. The Schaumburg-Lippe Constitution, echoing die v. still-dominant German view, expressly denied diis power to the courts." When the G crman states (now known as Lander) recmerged as viable political \. units after World War II, judicial review appeared once more, this time as an articu- late principle of several state {Land) constitutions. Perhaps because of the Weimar 'i experience, however, these documents did not authorize the regular courts to re- view the constitutionality of laws. Once again, consistent wi th an older tradition of "5 constitutional review, this authority was vested in specialized courts staffed with ; judges chosen by parliament from a variety of courts or constituencies. In any event, !;.. as this survey of German constitutional review demonstrates, the framers of the i..'.. Basic Law had plenty of precedents on which to draw in constructing their own j version of constitutional democracy. The Herrenchiemsee Conference I .. It should now be clear diat judicial review in Germany did not spring full-blown out 'p\ of die Basic Law of 1949- It was not adopted, as is often supposed, in response to I:. American pressure during the occupation. The Allied powers did, of course, con- ;« .. ccrn diemseives with the reorganization of die judicial system.23 For one thing, dicy I insisted diat any future government of Germany must be federal, democratic, and !;.; constitutional. Later, when die military governors commissioned the Germans to draft a constitution for the Western zones of occupation, they made it clear that I.... • judicial review was implicit in their understanding of an independent judiciary.34 Yet ' the military governors did not impose judicial review on a reluctant nation. "Die f;:.. 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 i - into an express principle of constitutional governance.23 While they were familiar ' - with the American system of judicial review and were guided by the American ' experience in shaping dieir constitutional democracy, Germans relied mainly on 'f'.;.." dieir own tradition of constitutional review. fc' The groundwork for the Basic Law was prepared in a resplendent nineteendi-r. century casde on an island in Lake Chiemsee during August 1948. On the initiative i; of Bavaria's state governor, Minister-President Hans Ehard, thcLätider in the Allied |. ■ zones of occupation called on a group of constitutional law experts to produce a first I; draft of a constitution to expedite the work of die ensuing constitutional convention i= ; known as the Parliamentary Council.26 The Herrenchiemsee proposals, which inly, eluded provisions for a national constitutional tribunal,27 followed the recommen-|;:: dations of Professor Hans Nawiasky, commonly regarded as die father of the post-; war Bavarian Constitution, which, like many odier state constitutions drafted in 1946 and 1947, provided for a state constitutional court. In cooperation widi Hans 4 8 German Constitutionalism Kclscn, Nawiasky had prepared a working paper proposing the establishment of a constitutional tribunal modeled after the Weimar Republic's Staatsgcnchtshof. Nawiasky was a strong advocate of judicial review during the Weimar period, and Kelsen had been one of the creators of the Austrian Constitutional Court.23 Claus Lcusser, an Ehard associate and later a justice of die Federal Constitutional Court, also helped to draft the Herrenchiemsce judicial proposals.29 The Hcrrcnchicmsee drafters looked mainly to the experience of Weimar's Staatsgcnchtshof for guidance in defining the powers of die proposed constitutional court.30 The draft plan envisioned a tribunal vested with both die competence of the Staatsgcnchtshof (i.e., its constitutional review jurisdiction) and the audior-ity 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 die court's political support. The plan included proposals for (i} the election of justices in equal numbers by the Bundestag (die federal parliament) and the Bundesrat {the council of state governments), (2) the participation of botii houses in selecting the court's presiding officer (the president), and (3) the selection of one-half of die justices from die high federal courts of appeal and the highest state courts.31 But the drafters were at odds over how the new court should be stnicturcd; 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.32 The Parliamentary Council The debate over the new court's structure continued in die constitutional convention (i.e., the Parliamentary Council).33 It all boiled down to a dispute over the nature of the new tribunal. Should it be like Weimar's Staatsgcnchtshof and serve mainly as an organ for resolving conflicts between branches and levels of government (i.e., a court of constitutional review) > Or should it combine such jurisdiction with die general power to review the constitutionality of legislation (i.e., judicial review) ? In line with the Herrenchiemsce plan, the framcrs finally agreed to create a constitutional tribunal independent of other public-law courts, but diey disagreed over how much of die consti tutional jurisdiction listed in die 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" law-interpreting roic of the regular judiciary. Some delegates preferred two separate courts—one to review the constitutionality of laws (i.e., judicial review), die other to decide essentially political disputes among branches and levels of government (i.e., constitutional review). Others favored one grand multipurpose tribunal divided into several panels, each specializing in a particular area of public or constitutional law. This proposal was strenuously opposed by many German judges, who were alarmed by any such mixing of law and politics in a single institution.34 The Federal Constitutional Gourt 9 I upshot was a compromise resulting in a separate constitutional tribunal with exciu- t sive jurisdiction over all constitutional disputes, including the authority to review I the constitutionality of laws. Tile final version of die Basic Law extended die court's jurisdiction to twelve categories of disputes and "such other cases as are assigned to it by federal legisla-* tion" (Article 93 [2]). Ttiis jurisdiction, however, could be invoked only by federal I and state governments (i.e., die chancellor or minister-president and his cabinet), f parliamentary political parties, and, in certain circumstances, courts of law. The i framers rejected the Herrenchiemsce proposal to confer on private parties the con- | stitutional right to petition the court, a decision in line widi die general practice of j constitutional review in Weimar Germany and Austria. (As noted below, however, J the individual right to petition the constitutional court was restored by legislation in I 1951 and incorporated into the Basic Law in 1969.) In any event, the two main { parties in die Parliamentary Council favored these limited rules of access, the Social t Democrats because diey would protect political minorities in and out of parliament, } and die Christian Democrats because diey saw die rules as equally useful in prcserv- I ing German federalism.35 f The interests of bodi political parties were also reflected in judicial selection j clauses specifying that die Federal Constitutional Court shall consist of "federal I judges and other members," half "to be elected by die Bundestag and half by the j Bundesrat" (Article 94) • Christian Democrats were tints assured of a strong "fed- I cral" presence on the court, just as Social Democrats could take comfort in knowing J that die court would not be dominated by professional judges drawn wholly from a 1 conservative judiciary. Impatient to get on with tiicir work of producing a constttu- ; tion, die framers stopped there, leaving odier details of die Constitutional Court's I organization and procedure to later legislation, f f The Legislative Phase \ Almost two additional years of debate were necessary to produce the enabling I statute creating die Federal Constitutional Court. The shape of the new tribunal represented a compromise between the conflicting perspectives of the federal government, die Social Democrats, and the Bundesrat on such matters as judicial selection and tenure, the ratio of career judges to "odier members," the qualifications of judicial nominees, the court's size and structure, and the degree of control over die court to be exercised by the Federal Ministry of Justice.36 All participants in die I debate recognized that the court's political acceptance would depend on broad agreement on these matters across parly and institutional lines. Finally, after months of intensive negotiation within and between the Bundestag and die Bundesrat, a bill emerged widi the overwhelming support of die major parliamentary parties and all branches of government. The result was the Federal Constitutional Court Act (Bun- > desverfassuiigsgerichtsgesctz, hereafter cited as fcca) of March 12,1951 ?7 In its current version the fcca includes 105 sections diat codify and flesh out io German Constitutionalism die Basic Law's provisions relating to die court's organization, powers, and procedures, important features of which are discussed below. Representing numerous political compromises, die fcca (i) lays down die qualifications and tenure of die courfs members, (2) specifies the procedures of judicial selection, (3) provides for a two-senate tribunal, (4) enumerates die jurisdiction of each senate, (5) prescribes the rules of access under each jurisdictional category, (6) defines the authority of the Plenum (both senates sitting togedier), and (7) establishes die conditions for the removal or retirement of die court's members. jurisdiction The United States Constitution contains no express reference to any judicial power to pass upon die validity of legislative or executive decisions. Chief Justice John Marshall laid down the doctrine of judicial review by inference from die constitutional text in die seminal can Marbitry v. Madison.371 The Basic Law, by contrast, leaves nothing to inference, as it enumerates all of die Constitutional Court's jurisdiction. The court is audiorized to hear cases involving the following actions: Forfeiture of basic rights (Article 1) Constitutionality of political parties (Article 21 [2]) Review of election results (Article 41 [2]) Impeachment of the federal president (Article fit) Disputes between high state organs (Article 93 [ 1 ] 1) Abstract judicial review (Article 93 [ 1 ] 2) Federal-state conflicts (Articles 93 [i] 3 and 84 [4]) Concrete judicial review (Article 100 [ 1 ]) Removal of judges (Article 98) Intrastate constitutional disputes (Article 99) Public international taw actions (Article 100 [z]) State constitutional court references (Article 100 [ 3]) Applicability of federal law (Article 126) Odierdisputes specified by law (Article 93 [2]) Constitutional complaints (Article 93 [ 1 ] 4a and 4b) The court thus has the authority not only to setde conventional constitutional controversies but also to try impeachments of the federal president, to review decisions of the Bundestag relating to die validity of an election, and to decide questions critical to the definition and administration of federal law. Internationa! law is particularly important here, for Article 25 of the Basic Law makes "the general rules of public international law ... an integral part of federal law." Whcdier such rules arc an integral part of federal law and whether tiicy create rights and duties for persons living in Germany arc questions only the Constitutional Court can decide. Federal Constitutional Court i i Tabic i.i. Federal Constitutional Cases, 1951-1994 Proceeding Docketed Decided Unconstitutional parties 5 ■5 Disputes between federal organs 107 si Federal-state conflicts 26 14 Abstract judicial review j 24 Concrete judicial review 2,901 959 Constitutional complaints 97,007 80,767* Other proceedings !,qs- Total io 1,268 82,516 I" Smm*: Statistical summary prepared by toDccem- ber 31, 1994; typescript). * Of these, 3,750 were decided by the full senates, most prior to the establishment of the chambers I... within each senate. ; ~ Each of the jurisdictional categories listed above is assigned to eidier the First Senate or die Second Senate.39 For our purposes, die most important of diese cate-1; ■ gories involve die constitutionality of political parties, federal-state conflicts, dis-|:' putes between high organs of die national government, constitutional complaints ä v, brought by ordinary citizens, abstract judicial review, and concrete judicial review— |:; importance here being measured by die number of cases filed in each category or by Jvv their political significance. As table 1.1 shows, constitutional complaints make up about 95 percent of die courfs caseload. As we shall see, however, some of the • court's most politically important work arises in other jurisdictional areas. fe Prohibiting Political Parties \ The Federal Constitutional Court's function as guardian of die constitutional order ; finds its most vivid expression in Article 21 (2) of die Basic Law. Under this provt- ■|; sion, political parties seeking "to impair or abolish the free democratic basic order or ,|: to endanger die existence of the Federal Republic of Germany shall be unconstitu- l tional." The article goes on to declare that only the Federal Constitutional Court ; may declare parties unconstitutional. To minimize any abuse of this provision, the |;:: ■ fcca authorizes only the Bundestag, the Bundesrat, and die federal government (i.e., die federal chancellor and his cabinet) to initiate an Article 21 action. ALand government may apply to have a party declared unconstitutional if that party's organization Is confined to its territory. Like most odier proceedings before the court, diis jurisdiction is compulsory; unless die moving party withdraws its petition, the court is obligated to decide the case, aldiough it may take its time in doing so. Up to now, as table i.t indicates, the court has ruled on five such petitions. In 12 German Constitutionalism two of the cases, decided early on, the court sustained the petitions: in 195Z when it banned die neo-Nazi Socialist Reich party, and in 1956 when it ruled the Communist party unconstitutional.40 In 1994, however, the court rejected the petitions of the Bundcsrat and the federal government to have the Free German Workers party (fgwt) declared unconstitutional as well as Hamburg's petition to ban die National List (nl) operating on its territory. The court ruled that aldiough the fgwf and the nl advanced views hostile to political democracy, neither group qualified as a political party within the meaning of the law or the Constitution.4' Disputes between High Federal Organs Conflicts known as Otgcmstreit proceedings involve constitutional disputes between the highest "organs," or branches, of the German Federal Republic. The court's function here is to supervise the operation and internal procedures of diesc executive and legislative organs and to maintain die proper institutional balance between them.43 The governmental organs qualified to bring cases under this jurisdiction are the federal president, Bundesrat, federal government, Bundestag, and units of these organs vested with independent rights by their rules of procedure or the Basic Law.43 Included among these units are individual members of parliament, any one of whom may initiate an Organstrtit proceeding to vindicate ', his or her status as a parliamentary representative.44 These units also include the parliamentary political parties.45 Early on, die Plenum ruled that even nonparlia-mentary political parties may invoke this jurisdiction.'"5 They may do so in their capacity as vote-getting agencies or organizers of the electoral process because, in fulfilling this task, political parties function as "constitutional" or federal organs within the meaning of the Basic Law (Articles? (1) [1]).47 If a political party is denied a place on die ballot, or if its right to mount electoral activity is infringed by one of the high organs of the Federal Republic, it can initiate an Organstrtit proceeding against the federal organ in question. An Orgatistreit proceeding is not available, however, to administrative agencies, governmental corporations, churches, or other corporate bodies widi quasi-public status.48 ; Federal-State Conflicts Constitutional disputes between a state and the national government ordinarily arise out of conflicts involving a state's administration of federal law or the federal government's supervision of state administration. Proceedings may be brought only by a state government or by the federal government acting in the name of its cabinet In addition, the court may hear "other public law disputes" between the federation and the states, between different states, or within a state if no other legal recourse is provided. Here again, only the respective governments in question are authorized to bring such suits. As in Oigtmstmt proceedings, the complaining party must assert that the act or omission complained of has resulted in a direct infringement of a right or duty assigned by the Basic Law. For its part, the Constitutional Court Federal Constitutional Court 13 is obligated by law to declare whether the act or omission infringes die Basic Law and to specify the provision violated. In the process of deciding such a case, the court "may also decide a point of law relevant to the interpretation of the [applicable] provision of the Basic Law."49 Concrete Judicial Review Concrete, or collateral, judicial review arises from an ordinary lawsuit If a German court is convinced that a relevant federal or state law under which a case has arisen violates the Basic Law, it must refer die constitutional question to the Federal Constitutional Court before the case can be decided. Judicial referrals do not depend on tlie issue of constitutionality having been raised by one of die parties. A lower court is obliged to make such a referral when it is convinced diat a law under %vhich a case has arisen is in conflict widi the Constitution. If a collcgial court is involved, a majority of its members must vote to refer die question. The petition must be signed by the judges who vote in favor of referral and accompanied by a statement of the legal provision at issue, the provision of the Basic Law allegedly violated, and die extent to which a constitutional ruling is necessary to decide the dispute.30 The Federal Constitutional Court will dismiss the case if the judges below it manifest less than a genuine conviction that a law or provision of law is unconstitutional or if the case can be decided without settling die constitutional question.3' As a procedural matter, the court must permit the highest federal organs or a state government to enter die case and must also afford die parties involved in die earlier proceeding an opportunity to be heard. The parties make their representations through written briefs. Abstract Judicial Review Whereas the United States Supreme Court requires a real controversy and adverse parties before it can decide a constitutional question, the Federal Constitutional Court may decide differences of opinion or doubts about die compatibility of a federal or state law with the Basic Law on the mere request of the federal or a state government or of one-diird of the members of die Bundestag.52 The relevant parties in these cases are required to submit written briefs. Oral argument before die court, a rarity in most cases, is always permitted in abstract review proceedings. The question of the law's validity is squarely before the court in these proceedings, and a decision against validity renders the law null and void.5' When deciding cases on abstract review, the court is said to be engaged in the "objective" determination of die validity or invalidity of a legal norm or statute.54 The proceeding is described as objective because it is intended to vindicate neidier an individual's subjective right nor the claim of the official entity petitioning for review; its sole purpose is to declare what the Constitution means. In so doing, die court is free to consider any and every argument and any and every fact bearing on any and every aspect of a statute or legal norm under examination. Indeed, once the si 14 German Constitutionalism : 4l| federal government, a Land government, or one-third of the Bundestag's members 9 lays a statute or legal norm before the court on abstract review, the case cannot be withdrawn widiout the court's permission, a condition that reinforces the principle of judicial independence that allows die court to speak in die public interest when necessity demands it. \ Constitutional Complaints In the proceedings discussed so far, access to die Federal Constitutional Court is limited to governmental units, certain parliamentary groups, and judicial tribunals. A constitutional complaint, by contrast, may be brought by individuals and entities vested with particular rights under die Constitution. After exhausting all other available means to find relief in the ordinary courts,55 any person who claims that the I' state has violated one or more of his or her rights under the Basic Law may file a constitutional complaint in the Federal Constitutional Court. Constitutional complaints must be lodged within a certain time, identify the offending action or omission and the agency responsible, and specify the coastitutionat right that has been violated.56 The fcca requires the court to accept any complaint if it is constitutionally significant or if the failure to accept it would work a grave hardship on die complainant.57 The right of an individual to file a constitutional complaint was originally a gift bestowed by legislation, and German citizens took advantage of dieir statutory right in increasing numbers over the years. By die mid-1960s the court was awash in such complaints, and Germans had come to regard the constitutional complaint as an important prerogative—almost a vested right—of citizenship. From the beginning, these complaints constituted the court's major source of business. In response, and with die court's backing, federal legislators anchored the right to file constitutional complaints in die Basic Law itself (Article 93 (t) [4a]). A companion amendment ratified in the same year (1969) vested municipalities with die right to file a constitutional complaint if a law violates their right to self-government under Article 28,SB The popularity of the constitutional complaint was such that no responsible pub-tic official opposed these amendments.59 Years later, die president of die Federal Constitutional Court was moved to say that the "administration of justice in the Federal Republic of Germany would be unthinkable without die complaint of unconsti nationality."60 According to Article 93 (r) [4a] of the Basic Law, any person may enter a complaint of unconstitutionality if one of his or her fundamental substantive or procedural rights under the Constitution has been violated by "public authority." "Any person" within the meaning of diis provision includes natural persons widi the legal capacity to sue as well as corporate bodies and odier "legal persons" possessing rights under the Basic Law.*1 As a general rule, only domestic legal persons are permitted to file constitutional complaints, aldiongh the Second Senate has ruled that foreign corporations arc entided to file procedural complaints involving the Federal Constitutional Court 15 right to a fair trial.61 The public authority clause of Article 93 (1) [4a] permits constitutional complaints to be brought against any governmental action, including judicial decisions, administrative decrees, and legislative acts. No ordinary judicial remedy is available against legislative acts. If, however, such an act is likely to cause a person serious and irreversible harm, he or she may file the complaint against the act without exhausting other remedies. Finally, over and above these basic diteshold requirements, a complaint must be "clearly founded" (qffemieblicb begriindet) if it is to be accepted and decided on its merits.63 The procedure for filing complaints in die Coastitutionai Court is relatively easy and inexpensive. No filing fees or formal papers are required. Most complaints are handwritten and prepared without die aid of a lawyer (about a third are prepared by counsel). No legal assistance is required at any stage of die complaint proceeding. As a consequence of these rather permissive "standing" rules, the court has been flooded with complaints, which have swelled in number from well under 1,000 per year in the 1950s, to around 3,500 per year in the mid-1980s, to more than 5,000 per year in die mid-1990s, when constitutional complaints began to rival the numbers on the appellate docket of die United States Supreme Court.64 The court grants full dress review to barely more than 1 percent of all constitutional complaints, but such complaints result in some of its most significant decisions and make up about 55 percent of its published opinions. INSTITUTION Status When the Constitutional Court opened its doors for business in Karlsruhe on September 28, 1951, its status within the governmental framework of separated powers, and even its relationship to the otiier high federal courts, remained an unsettled issue. The Basic Law itself was ambivalent on the matter of die court's status. On the one hand, the wide-ranging powers of the court laid down in die constitutional charter pointed to a tribunal commensurate in status with die other independent constitutional organs (i.e., die Bundesrat, Bundestag, president, and federal government [chancellor and cabinet]) created by the Constitution. On the other hand, the Basic Law authorized parliament to regulate die court's organization and procedure. Initially, the new tribunal was placed under the authority of the Federal Ministry of Justice, a situation that irritated several justices, including die court's first president, Hermann Hopker-Aschoff*. As a consequence, the justices boldly set out, in their first year of operation, to defend die court's autonomy, foreshadowing die fierce independence they would later exercise in adjudicating constitutional disputes.68 On June 27,1951, after montiis of planning, die court released a memorandum originally drafted by Justice Gerhard Leibholz, one of its most prestigious members, f 16 German Constitutionalism that called for an end to any supervisor)' authority by the Justice Ministry, complete budgetary autonomy, and the court's full control over its internal administration, including the power to appoint its own officials and law clerks. The memorandum added that the Federal Constitutional Court is a supreme constitutional organ coordinate in rank with the Bundestag, Bundesrat, federal chancellor, and federal president. Its members, dien, arc in no sense civil servants or ordinary federal judges but rather supreme guardians of die Basic Law entrusted with die execution of its grand purposes, no less than other high constitutional organs of die Federal Republic of Germany. Indeed, the memorandum continued, the court has an even greater duty: to ensure that odier constitutional organs observe the limits of the Basic Law.66 The memorandum from Karlsruhe generated a strong tremor in Bonn; it star-ded the government, angered dte Ministry of Justice, and set off several years of skirmishing that yielded alignments almost identical to those that had formed in the early stages of the parliamentary debate on the structure of the proposed tribunal. Social Democrats and die Bundesrat generally supported the justices' demands, while the coalition parties in die Bundestag generally opposed them. The real tangle, however, was between the Ministry of Justice and the Constitutional Court, and it featured an occasional unseemly public exchange between two Free Democrats who as members of the Parliamentary Council had played major roles in drafting the Basic Law, namely, Thomas Dehler, minister of justice, and President Hermann Hdpker-Aschoff, the stately and highly respected "chief justice."67 In 1953, the Bundestag severed the court's tics to die Ministry of Justice, and by i960, with the gradual growth of the court's prestige and influence, all of the "demands" articulated in the Leibholz memorandum had been met.68 In Bonn's official ranking order, die court's president now enjoyed the fifth highest position in the Federal Republic, following die federal president, the federal chancellor, and the presidents of the two "houses" of parliament. As "supreme guardians of die constitution," the remaining justices followed behind. Eventually they were even exempted from die disciplinary code regulating all other German judges.*9 The cou rt's hard-won constitutional status was best symbolized by a 1968 amendment to die Basic Law providing that the "function of the Federal Constitutional Court and its justices must not be impaired" even in a state of emergency. During such a time, the special body responsible for acting on behalf of die Bundestag and the Bundesrat is even barred from amending the fcca unless such an amendment is required, "in the opinion of the Federal Constitutional Court, to maintain die capability of die court to function."70 The Two-Senate Structure The most important structural feature of die Constitutional Court is its division into two senates with mutually exclusive jurisdiction and personnel.71 The Plenum—the two senates sitting together—meets periodically to resolve jurisdie- Federal Constitutional Court 17 President of the Federal Constitutional Court President First Senate Presiding: President and 7 justices Vice President Second Senate Presiding: Vice President and 7 justices Director Judicial Council Law Clerks Division Director of Federal Constitutional Court Manage: Judicial Council — Press Office Office of Professional Services Auditor's Office Office of General Administration Documentation Center Library General Register Archive Personnel Division General Maintenance Division Figure i.i. Federal Constimtional Court Organization tional conflicts between die senates and to issue rules on judicial administration. Justices arc elected to eidier the First Senate or the Second Senate. The president ordinarily presides over die First Senate and the vice president over die Second Senate. Both "chief justices" are wholly independent widi respect to judicial matters before dicir respective senates. Finally, each senate is equipped with its own administrative office for the organization and distribution of its workload (see figure 1.1) 72 Tiie twin-senate idea was a compromise between legislators who preferred a fluid system of twenty-four justices rotating on smaller panels and diose who preferred a fixed body like diat of die United States Supreme Court. More important, the bifurcation was the institutional expression of the old debate between those who viewed the court in conventional legal terms and diose who saw it in political terms. The original division of jurisdiction showed diat the senates were intended to fulfill very different functions. The Second Senate was designed to function much like Weimar's Staatsgerichtshof; it would decide political disputes between branches and levels of government, settle contested elections, rale on the constitutionality of political parties,73 preside over impeachment proceedings, and decide abstract ques- i 18 German Constitutionalism tions of constitutional law. The First Senate was vested with the audiority to revie%v the constitutionality of laws and to resolve constitutional doubts arising out of ordi- f nary litigation. More concerned with the "nonpolitical" side of die court's docket and the "objective" process of constitutional interpretation, the First Senate would hear die constitutional complaints of ordinary citizens as well as referrals from other courts. As already noted, a lower tribunal that seriously doubts die constitutionality of a statute under which an actual case arises is obliged, before deciding the case, to certify the constitutional issue to the Constitutional Court for its decision/4 This division of labor resulted initially in a huge imbalance between the workloads of the two panels. The Second Senate decided only a handful of political cases, while the First Senate found itself flooded with constitutional complaints and concrete review cases. As a consequence, die federal parliament amended die fcca in T956 to distribute the caseload more evenly between the senates. Much of the First Senate's work was transferred to die Second Senate, dius eroding die original rationale of die two-senate system. The Second Senate, while retaining its "political" docket, would henceforth decide all constitutional complaints and concrete judicial review cases dealing widi issues of civil and criminal procedure. The First Senate would continue to decide all such cases involving issues of substantive law. In addition, the Plenum was authorized by law to reallocate jurisdiction in a manner that would maintain relatively equal caseloads between die senates.75 The number of justices serving on the two senates has also changed over the years. The fcca originally provided for twelve members per senate. In 1956 die number was reduced to ten; in 1962 it was further reduced to eight, fixing the court's total membership at sixteen (see Appendix B) J6 Considerations of efficiency, coupled widi the politics of judicial recruitment,77 prompted diese reductions. For all practical purposes, then, the Constitutional Court comprises two independent tribunals, although each functions in die name of the court as a whole. In 1983, however, parliament modified the ironclad rule against any interchange among justices. The fcca now provides diat if one senate is unable to convene because of the incapacity or unavailability of one or more of its justices—a quorum consists of six justices—one justice from die other senate may be chosen by lot to serve temporarily in the understaffed senate. The presiding officers of the two senates are excluded from serving as substitute justices.78 Intrasenatc Chamber System To speed up die court's decision-making process, die fcca changed the internal structure of the two senates in 1956 by audiorízíng each senate to set up three or more preliminary examining committees, each consisting of three justices, to filter out frivolous constitutional complaints.79 At the beginning of each business year, each senate appoints its respective committees, subject to die rule diat no three justices may serve together on the same committee for more than three years.80 The president and vice president serve as chairs of their respective committees, as docs Federal Constitutional Court 19 die senior justice on each of the remaining committees. A committee may dismiss a complaint if all three of its members consider it to be "inadmissible or to offer no prospect of success for other reasons."81 Under current procedure, if one of die three justices votes to accept a com plaint — that is, if he or she thinks it has some chance of success—it is forwarded to die full senate.82 At this stage, die "rule of three" controls; if at least three justices in the full senate arc convinced diat the complaint raises a question of constitutional law likely to be clarified by a judicial decision, or that the complainant will suffer serious harm in the absence of a decision, die complaint will be held acceptable.83 Thereafter, and on the basis of more detailed examination, a senate majority could still reject the complaint as inadmissible or trivial.84 In 1986, on the Constitutional Court's own recommendation, the federal parliament enhanced the power of die three-judge committees, henceforth called chambers {Ktimmer). In addition to dicir normal screening function, the chambers are now empowered to rale on die merits of a constitutional complaint if all dirce justices agree widi the result and die decision clearly lies within standards already laid down in a case decided by die full senate,85 The audiority to declare a statute unconstitutional or in conflict with federal law is reserved to die full senate.86 Under current procedures, a chamber is not required to file a formal opinion justifying its refusal to accept a complaint for a decision on the merits.87 As a matter of practice, however, whedier deciding a complaint on the merits or on the question of admissibility {Zulassigkeit),% chamber often accompanies its decision with an opinion one to several pages long.88 Most of these decisions remain unpublished, and they are cataloged in the court's own files for internal use and reference.89 Occasionally, however, and in consultation with the full senate, chamber decisions are published in the court's official reports.90 Other chamber opinions diat serve to clarify points of law already laid down in previous cases or likely to command public attention may be released for publication in major legal periodicals such as Ncue Jitristischc Wochcwchrift and Deutsclie Juristenzeitftntj,91 By separating die wheat from the chaff, the chambers dispose of 95 percent of all complaints, relieving die full senates of what would otherwise be an impossible task. Chambers are no longer required to offer reasons for the dismissal of a complaint if the complainant is notified at the outset that there is little hope for the success of his or her petition, a practice that helps the court to clear its docket.92 To discourage die filing of trivial complaints, die fcca authorizes the court to fine petitioners who "abuse" die constitutional complaint procedure. Currcndy, die court may level a fine of up to dm 5,000 ($3,600) on abusers.93 As of 1986, the chambers were given the additional authority to impose a fee of up to dm i ,000 ($720) on any petitioner whose complaint it refuses to accept because it is eitiier clearly inadmissible or wholly unlikely to succeed.94 This practice, however, failed to decrease die number of complaints arriving at the court, and it was recently abandoned. The chamber system has been die subject of several constitutional challenges, the complainant having argued in each case that a chamber's dismissal of his com- ao German Constitutionalism plaint denied him the right to "the jurisdiction of his lawful judge" under Article to i of the Basic Law. Since the Basic Law provides for one constitutional court, argued the complainants, the full senate is constitutionally required to decide every case. In the three Ttme-Jttstice Committee cases,95 involving decisions by botii senates, the court ruled against the complainant on the basis of its original statutory authority to establish internal committees. In one instance, seemingly piqued by die audacity of the complainant who challenged its decision-making procedures, the Second Senate slapped a nominal fine on the complainant for "abusing the constitutional complaint procedure."96 These decisions, all rendered before the right to file a constitutional complaint was entrenched in the Basic Law, underscored die finality of committee decisions unanimously rejecting complaints. In short, if a complaint is unanimously rejected, no "appeal" lay to die full senate, its sister senate, or the Plenum. The constitutionalization of the complaint procedure in 1969 appeared to erode the foundation of the Time-Justice Committee cases. In recent years, however, no challenge has been hurled against the chamber system on constitutional grounds, "and in any event it is rather hard to imagine the court undermining its own protective ramparts."97 Clearly, some form of gatekeeping procedure involving less than full senate membership is necessary as a practical matter if the court is to cope with a system that "entitles [anyone] to complain to it about virtually anything.*98 On the other hand, the system could permit hidden criteria to influence die summary disposition process and thus perhaps to "resolve" matters rightfully within die full senate's competence." There is also the chance that different standards may exist from chamber to chamber, possibly invading the Plenum's right to ensure uniform judgments across senates, although the three-year rolling membership requirement would seem to mitigate this problem. Qualifications and Tenure To qualify foraseatonthe Constitutional Court, persons must be forty years of age, eligible for election to the Bundestag, and possess the qualifications for judicial office specified in the German Judges Act (Deutsches Richtergesetz).100 This means diat prospective justices must have successfully passed the first and second major state bar examinations. Additionally, justices may not simultaneously hold office in the legislative or executive branch of die federal or a state government. Finally, die fcca provides that the "functions of a justice shall preclude any other professional occupation save that of a professor of law at a German institution of higher education" and that the justice's judicial functions must take precedence over any and all professorial duties.1Hi The fcca originally provided lifetime terms for the federal judges on each senate (i.e., those chosen from the high federal courts). The other members-justices not required to be chosen from the federal courts—were limited to renewable eight-year terms of office. The recruitment of a certain number of judges from Federal Constitutional Court zi die federal courts for the duration of their terms on those courts was expected to bring judicial experience and continuity to die Constitutional Court1s work. Parliament amended the fcca in 1970, however, to provide for single twelve-year terms for all justices, with no possibility of reelection.102 Three of die current eight justices per senate must, as before, be elected from die federal judiciary. All justices—federal judges and other members—must retire at age sixty-eight, even though they may not have served for twelve years. The debate on judicial tenure prior to the 1970 change in the law was entangled with die question of whether justices should be audiorizcd to publish dissenting opinions.103 As early as 1968, lawmakers, supported by a majority of die justices, seemed prepared to sanction signed dissenting opinions. But the feeling was widespread diat the justices could not be expected to speak dieir minds if their tenure depended on the continuing pleasure of parliament. The justices themselves favored lifetime appointments. The government in turn responded with a bill that provided for bodi dissenting opinions and a twelve-year term with the possibility of reelection for a single second term of twelve years. Social Democrats, however, insisted on a single fixed term of twelve years, conditioning their support of die dissenting opinion largely on die acceptance of diis proposal. But die question was not hody contested among die political parties. A single twelve-year term, combined with die dissenting opinion, was generally thought to be an adequate solution to bodi the problem of judicial independence and die need for a greater measure of judicial openness on die Constitutional Court.104 Machinery for Judicial Selection The Basic Law provides that half the courts members be elected by the Bundestag and half by die Bundesrat. Under the fcca, however, the Bundestag elects its eight justices indirecdy through a twelve-person Judicial Selection Committee ()sc) known as die Walilmannerausschuss. Party representation on the jsc is proportionate to each party's strength in the Bundestag; eight votes arc required to elect,105 The Bundesrat, on the other hand, votes as a whole for its eight justices, a two-thirds vote also being required to elect."** Although each house elects four members of each senate, die fcca stipulates diat of the three justices in each senate "selected from among the judges of the highest federal courts, one shall be elected by one [house] and two by the other, and of die remaining five judges, three shall be elected by one [house] and two by die ot.hcr.",n7 Which house elects each combination is a matter of informal agreement between die two chambers, although die Bundestag and Bundesrat alternate in selecting the court's president and vice president (die Bundestag was authorized to elect the first president and the Bundesrat die first vice president) .i0S Prior to the selection process the minister of justice is required to compile a list of all die federal judges who meet the qualifications for appointment, as well as a list of die candidates submitted by the parliamentary parties, the federal government, or 22 German Constitutionalism Federal Constitutional Court 23 a stare government. The minister delivers these lists to die electoral organs at least one week before they convene. If cither house fails to elect a new justice within two months of the expiration of a sitting justice's term, the chairman of the jsc—die oldest member of the committee—or the president of the Bundesrat {depending on die house doing the electing) must request die Constitutional Court itself to propose a list of three candidates; if several justices are to be elected simultaneously, the court is required to "propose twice as many candidates as the number of justices to be elected."109 The Plenum selects die list by a simple majority vote. But parliament is not obligated to choose die appointee from diis or any other list. In reality, the actual process of judicial selection is highly politicized. The jsc, which consists of senior parry officials and the top legal experts of each parliamentary party, conducts its proceedings behind closed doors and after extended con- T sultation widi the Bundesrat.110 Although die parliamentary parties may not legally instruct their representatives on the jsc how to vote, committee members do in fact speak for die leaders of their respective parties. The two-thirds majority required to elect a justice endows opposition parties in die jsc with considerable leverage over appointments to the Constitutional Court. Social and Christian Democrats are in a position to veto each other's judicial nominees, and the Free Democratic part)', when in coalition with one of the larger parties, occasionally wins a seat for itself through intracoaiition bargaining. Compromise is dius a practical necessity. Compromise among contending interests and candidacies is equally necessary in die Bundesrat, where the interests of die various states, often independent of party affiliation, play a paramount role in the selection of the justices. An advisory commission consisting of die state justice ministers prepares a short list of potentially electable nominees. The justice ministers on the commission, like certain state governors (i.e., ministers-president) and members of die Bundestag's jsc, are often themselves leading candidates for scats on the Constitutional Court. Informal agreements emerge from the commission's proceedings, specifying which states shall choose prospective justices and in what order. Throughout diis process the commission coordinates its work with that of the jsc. It is important to avoid duplicate judicial selections, and the two chambers need to agree on the particular senate seats each is going to fill and which of these seats are to be filled widi justices recruited from the federal high courts (three justices of each-senate must be recruited from these courts).111 PROCESS Internal Administration The Federal Constitutional Court achieved a major victory when it won the author-it)' early on to administer its own internal affairs. Administrative autonomy had two notable consequences for die court's institutional development. First, armed with die power to prepare its own budget in direct consultation widi parliament and die Ministry of Finance, the court was able to plan its own future. In 1964 it even won approval for an ultramodern building designed by its own architects and engineers. Second, the president's administrative audiority was substantially enlarged. While only primus inter pares in the judicial conference room, he or she is primus on all other matters of internal administration, a situation that once aggravated relations between the president and several associate justices. In 1975, after years of discord between the president and individual justices over their respective duties and powers, parliament enacted a set of standing rules of procedure governing die courťs internal operations.112 The new rules charge die Plenum, over which the president presides, with preparing the budget, deciding all questions pertaining to the justices' duties, and formulating general principles of judicial administration. They audiorizc the Plenum to establish several standing committees for the purpose of recommending policies dealing with matters such as record keeping, budgetary policy, personnel administration, and library administration. The rules require die president to carry out these policies and to represent the court in its official relations with other government agencies and on ceremonial occasions. In addition, the rules entide each senate to an administrative director, who is responsible to its presiding justice. Overall judicial administration is the responsibility of the Constimtional Courťs director, the highest administrative official in the court, who answers only to the president.113 The director, like the justices themselves, must be a Sawyer qualified for judicial office. (Indeed, one previous director, Walter Rudi Wand, was elected to die Second Senate in 1970.) Finally, each justice is entitled to three research assistants or clerks of his or her own choosing. Law clerks are not recent law school graduates as in die United States. They are usually in their thirties or early forties and already embarked on legal careers as judges, civil servants, or professors of law. Most serve for two or dtrcc years, although some clerks have stayed on for longer periods. Decision-Making Procedures The fcca, along with the Constitutional Courťs General Rules of Procedure, sets forth each senate's interná practices and procedures. For its part, die fcca includes general and special provisions governing each category of jurisdiction (e.g., party prohibition cases, federal-state conflicts, collateral judicial-review references, etc.). The General Rules of Procedure deal with (1) conditions under wh ich a justice may be excluded from a case; (2) procedures to be followed in various types of cases; (3) rights of the parties involved in litigation before the court, including the qualifications of those legally entided to represent them; (4) obligations of public officials and judges to cooperate with the court in disposing of certain cases; (5} special rules accompanying the issuance of temporary orders; and (6) die manner in which decisions arc made and announced.114 The procedures on judicial removal require a justice to recuse himself from a 74 German Constitutionalism case if he is related to one of the parties or has a personal interest in its outcome,115 Recusation, however, is beyond a justice's own discretion. Whether he or she initiates the recusal or resists a formal challenge of bias by one of the parties, the full senate decides the matter in his or her absence. A decision denying or upholding a voluntary recusal or a challenge to a justice refusing to withdraw from a case must be supported in writing and included among die court's published opinions.116 A justice who refuses to recuse himself in die face of motions against his participation must provide his colleagues with a formal statement in defense of his involvement. The statement is included in the senate's formal opinion on the recusal. The critical issue in such cases is not whether the justice in question is in fact biased, but whedier a party to the case has a sufficient reason for believing that he or she may be incapable of making an impartial judgment. So far, two justices have been excluded under these procedures: Justice Gerhard Leibholz in the third Party Finance III case (1966),117 and Justice Joachim Rottmann in the East-West Basic Treaty case (1973) •118 Both produced moments of high tension on die court. In each instance petitioners complained that the justice compromised his impartiality by making off-the-bench—and admittedly indiscreet—public comments on die merits of pending litigation,1'9 The Constitutional Court's deliberations are secret, and the justices render their decisions on die basis of the official record. The rules require diat each senate decision be justified by official opinions signed by all participating justices (six justices constitute a quorum) ,uo Oral arguments are the exception; they are limited to cases of major political importance. Of fifty reported cases handed down in 1991, only eight were decided subsequent to oral argument. A decision handed down on the basis of an oral proceeding is known as a judgment (Urteil); a decision handed down in the absence of oral argument is labeled an order, or ruling {BesMuss). The distinction is formal, however; whether an Urteil or a Bescbhiss, the judgment binds all state authorities, and decisions having the force of general law—for example, most abstract and concrete judicial review cases — must be published in the Federal Law Gazette,121 along widi all parliamentary resolutions and laws. Assignment. Specialization is a major feature of the judicial process within the Federal Constitutional Court. As noted earlier, each senate has a specified jurisdiction. Once incoming cases have been processed in die Office of die Director, they are channeled to die appropriate senate and then passed on to the various justices according to their areas of expertise.122 Before the start of the business year, each senate establishes the ground rules for the assignment of cases. By mutual agreement, and in consultation with his or her senate's presiding officer, each justice agrees to serve as the rapporteur {Berichterstatttr) in cases related to ills or her particular interest or specialty. At least one justice of the Second Senate, for example, typically has a background in international law and serves as the rapporteur in cases involving international legal issues such as asylum, extradition, and deportation. ■í;, Federal Constitutional Court 25 j J Anodicr justice might take charge of cases involving tax and social security law, ■f'■■ while still anodicr might be assigned cases dealing with issues arising from laws relating to marriage and the family. The rapporteur's job is to prepare a written document, or brief (votum) whose í? ; preparation is a crucial stage in die decisional process. Assisted by his or her law X : clerks, the rapporteur prepares what amounts to a major research report. Fie dc-1:scribes the background and facts of the dispute, surveys the court's own precedents {• and the legal literature, presents fully documented arguments advanced on both = " sides of the question, and concludes with the personal view of how the case should j,. be decided. A votum, which may be well over a hundred pages long, may take ;|;' weeks, even months, to prepare, and often it forms the basis of the first draft of die : court's final opinion,123 In any one calendar year each justice prepares several major votums, studies thirty to forty additional ones audiored by his or her colleagues, f. drafts shorter reports (minivotums) —about two hundred per year—for his two j: colleagues on the diree-judge chambers, writes die opinion in cases assigned to him ;f" as rapporteur, and readies himself for die weekly conference. f Oral Argument. As already noted, formal hearings before die court are rare. Each í senate hears oral argument in three or four cases annually, usually in Qrganstreit and \ abstract judicial-review cases, in which oral argument is mandatory unless waived by .r die major organs or units of government bringing these cases. The rapporteur, who i. by this time has neared the completion of his or her votum, usually dominates the if: questioning. The main function of the oral argument is less to refine legal issues than ' to uncover, if possible, additional facts bearing on them. The public hearing also ľ adds legitimacy to the decision-making process in cases of major political impor- ! : tance, particularly when minority political parties allege that the established parties "-%;,.■ have treated diem unconstitutionally,'24 The generous time allotted to oral prcsen- I rations—a full day or more—and the court's readiness to hear the full gamut of ; j ■ argumentation on both sides of a disputed question are intended to generate good- t will and convey a sense of fairness and openness to winners and losers alike. ■■IConference. The presiding officer of each senate schedules weekly—occasionally /.j-/ semi weekly—meetings to decide cases and dispose of other judicial business, Ex- 1 ' cept for August and September, when the court is not in session, meetings arc normally held ever)' Tuesday, frequendy spilling over into Wednesday and Thurs- ■ j" day. Votums and draft opinions of cases already decided dominate the agenda. In ■ ■■ considering a votum, the presiding justice calls on die rapporteur to summarize the case and state the reasons for his recommendation. The rapporteurs role is crucial :|.- .. here, for a carefully drafted and well-organized votum usually carries die day in .j conference. In addition, the pressure of time often prompts justices to defer to die I rapporteurs expertise and judgment.12S :! Still, die rapporteur has to win die consent of his colleagues. It is his respon- 26 German Constitutionalism sibiiity, along with that of the "chief justice," to marshal a majority or find a broad basis of agreement. In this process, skill and personality are important. The rapporteur who does his homework, solicits die views of colleagues, and negotiates artfully is likely to prevail in conference. Justices who lack diese gifts or die full confidence of their colleagues are unlikely to prevail. If, on the other hand, the rapporteur is in the minority—and even die most influential justices occasionally find themselves in diis position — he does not necessarily lose his influence over the case, for he still has the task of writing the court's opinion. If he combines political sagacity widi a deft literary hand, he may leave his imprint on the finished product. A rapporteur with strong dissenting views may request that die writing of the opinion be assigned to another justice, but this rarely happens. If he knows the requisites of judicial statesmanship, he will draft an opinion broadly reflective of a wide common denominator of agreement, often representing a compromise among conflicting constitutional arguments.126 The production of such opinions—that is, opinions which reduce discord on the bench and preserve the court's moral authority in die public mind—is likely to be a function of the presiding officer's capacity for leadership. His task is to guide discussion, frame the questions to be voted on, and marshal the largest majority possible behind judicial decisions. His leadership is particularly important in die sessions in which opinions undergo final and often meticulous editing. Despite the introduction of signed dissenting opinions in 1971, die court continues unanimously to decide more than 90 percent of its reported cases. Aldiougli diese reports disclose the identities of die justices participating in a case, majority opinions remain unsigned. It is common knowledge among informed observers, however, that the rapporteur in a unanimous decision is die principal author of the final opinion. The institutional bias against personalized judicial opinions has tended to minimize published dissents. Dissenting justices—even tf diey have circulated written dissents inside die court—more often than not choose not to publish their dissents or even to be identified as dissenters partly out of a sense of institutional loyalty. The prevailing norm seems to be that personalized dissenting opinions arc proper only when prompted by deep persona! convictions. Caseload and Impact Table 1.1 presents an overview of the court's workload during its first forty-three years of operation. These statistics, however, dp not tell the full story of the business before the court or its function in the German polity. In a given calendar year die court receives eight to ten thousand letters, notes, or communications from citizens throughout the Federal Republic. Inadmissible under die court's regular procedures, these "cases" are consigned to die custody of the General Register's Office (sec figure 1.1 ).127 The General Register responds to these petitioner's, in most instances advising them that their inquiries are misdirected. If, however, the petitioner Federal Constitutional Court 27 Table 1.2. The Federal Constitutional Court's Caseload in 1991, j 992, and 1993 Jurisdictional category Election disputes Disputes between federal organs Abstract judicial review Concrete judicial review Other public law disputes Requests for temporary injunctions Constitutional complaints 1 f The doctrine of the unconstitutional constitutional amendment is one of sev- 1 eral unwritten constitutional principles the court has deduced from the overall ] structure of the Basic Law. Other examples are die principles of federal comity, the I party state, and militant democracy. Comity has been inferred from the Basic Law's j general structure of federal-state relationships (sec chapter 3), the party state from j the language of Article 21 (sec chapter 5), and militant democracy from the oft- repeated words "free liberal democratic order" (see chapter 5). These are also I among the highest values of the German polity, and they have taken dieir place j along with other fundamental norms found within the objective value order of the ii Basic Law j .1 Theory of Basic Rights. In the seminalLuth case (1958; no. 8.1), theConstitu- ! tional Court remarked that the Basic Law's objective system of values "expresses and j reinforces the validity of the [enumerated] basic rights."93 Given die importance of this system, declared the court, diese objective values "must apply as a consti tutional The Basic Law 49 axiom throughout die whole legal system," influencing private as well as public law. The court ruled diat while basic rights apply directly to state action, they apply indirectly to substantive private law. Accordingly, in deciding conflicts between private parties, judges arc obligated to consider die "radiating effect" of basic rights on third parties {Drituvirkung). In private-law disputes, then, the interpretation of private law must be consistent with the objective values underlying guaranteed basic rights, A collateral search for a coherent dieory of basic rights (Gmndsreciitstheorie) has also evolved out of die concept of an objective system of values. The attempt to construct a coherent theory of rights, however, confronts an interpretive difficulty. For one thing, open-ended words and phrases like "democracy" "constitutional order" and, above all, "free democratic basic order," are indeterminate concepts. Additionally, under die Basic Law, persons have duties as well as rights, but rights and duties are not easily reconciled. Developing a philosophically coherent jurisprudence of rights under any circumstance is a difficult task. To do so in the light of die text of the Basic Law is even more difficult. In truth, German constitutional theorists have advanced five normative dieo-rics of basic rights: liberal, institutional, value oriented, democratic, and social.94 Each finds some support in the literature of constitutional theory; each draws some support from particular decisions of die Federal Constitutional Court.95 Liberal theory, based on postulates of economic liberty and enlightened self-determination,, emphasizes the negative rights of the individual against the state. Institutional theory focuses on guaranteed rights associated widi organizations or communities such as religious groups, die media, universities (research and teaching), and marriage and the family. Value-oriented dieory places its emphasis on human dignity as it relates to rights flowing from the nature of die human personality. Democratic theory is concerned with certain political functions incident to the rights of speech and association and die role of elections and political parties. Social theory, finally, highlights the importance of social justice, cultural rights, and economic security. Not surprisingly, scholars and judges have linked each of these theories to one or another of the conceptions of state discussed earlier. It is possible through interpretation to regard one of these five theories as dominant. Yet each, like each conception of the state, has some basis in the text of die Basic Law. Like their counterparts in die United States, many constitutional theorists expend considerable energy debating whedier or not diere is an "objectively" correct interpretation of die Basic Law's fundamental rights provisions. For its part, die Constitutional Court seems content to decide human rights disputes on a case-by-case basis, using what it regards as the most convincing argument or theory available in a given situation. The justices can easily draw on the logic of any of the five theories, for they are not wholly inconsistent with one another. Tensions between diem do exist, and much of the work product of the Federal Constitutional Court described in this book is best understood as a playing out of these tensions. jo German Constitutionalism JUDICIAL REVIEW IN OPERATION A major function of constitutional theory in Germany, as in die United States, is to resolve "die tension between representative democracy and constitutional review in a way diat both jusdfiefs] and regulate [s] tiieir coexistence."* Numerous commentators have sought to mark die boundary between legislation and constitutional adjudication and to comprehend the fine line that the Federal Constitutional Court has drawn between law and politics.97 The following discussion summarizes the strategies devised to temper judicial activism with restraint and thus to preserve the creative coexistence between democracy and constitutionalism. The Scope of Review The Constitutional Court renders its decisions largely in declarator)' form. In cases of major importance it may issue a temporär)' injunction against a political department of the government, pending the clarification of a constitutional question. The court normally confines itself, however, to declaring laws null and void or simply incompatible with some particular provision of die Basic Law. As noted earlier, the court is unbound by any case or controversy requirement. By remaining on die high road of broad-ranging, principled declarations, the court in a sense elevates the status of die parties, assuming tiieir moral autonomy in die face of decision. As Justice Flans G. Rupp explained: "The only marshal there is to enforce the court's ruling is its moral audiority, the conscience of the parties concerned, and in the last resort, the people's respect for law and good government. It is mainly this limitation which renders it less objectionable to let a court settle legal issues which are closely connected with domestic or international politics,"93 Apart from this limitation, the Constitutional Court follows a number of guidelines analogous to certain maxims of judicial self-restraint advanced by Justice Brandeis in Ashvander \'. Tennessee Valley Authority,"39 For example, the rule that the United States Supreme Court will not pass upon the constitutionality of legislation in a nonadversary proceeding has its equivalent in the Constitutional Court's refusal to.decide moot questions. We have seen that concrete judicial-review references must arise within the framework of actual litigation. The justiciability of a constitutional complaint likewise depends on certain attributes of concreteness and particularity. Even cases coming before die court on abstract judicial review require real conflicts of opinion within or among governing institutions. By die same token, the court will not anticipate a question of constitutional law in advance of the necessity for deciding it. In short, while every case properly before the court involves a constitutional question, die court usually refrains from deciding ancillary constitutional issues not yet ripe for decision. For example, die court may strike down a particular federal regulation interfering witii a state's administration of federal law but decline to set forth die general conditions under which federal administrative control would prevail.100 The court also is reluctant to issue tcmpo- i The Basic Law 51 l: rary injunctions against government agencies about to engage in allegedly uncon-| stitutiona! behavior, preferring as a matter of strategy to allow the challenged ac- tivity to proceed until die court has had time to consider the matter on its merits.101 Yet here, as with much of its audiority, the court's sense of self-restraint is the only check on the exercise of its power. American legal scholars will recognize oihcr Aslnmnder maxims in the court's j general approach to constitutional disputes. A leading principle of judicial review in Germany obliges the court to interpret statutes, when possible, in conformity widi the Basic Law (Pfliebt zur verfassuntjskonfonnenAttslejun^).102 If a statute lends itself ; to alternative constructions for and against its constitutionality, the court follows the reading that saves die statute, unless the saving construction distorts the meanly ing of its provisions. The court also has stated on numerous occasions that it will not i substitute its judgment of sound or wise public policy for diat of die legislature,103 a rule particularly relevant in equal protection analysis. Nor will statutes be overturned simply because the legislature may have inaccurately predicted the con-1 sequences of social or economic policy. As the Codetermitmtion (1978; no. 6.6) 5 and Knlkar I {1978; no. 4,6) cases make plain,104 the court grants a generous mar-i gin of error to die legislature. It will uphold an ordinary statute unless the statute clearly violates the principle of proportionality (Verhaltnismiisstgkeit), the rule of law j (Reebtsstaatlichkeit), or some related principle of justice such as legal security, clarity, < or predictability.105 ; The court applies diese same principles with respect to laws examined in the ! course of ordinary civil and criminal proceedings. In addition, die justices have \ developed several rules for limiting the number of referrals (Vorlajjeverfahren) from courts of law.104 One such rule requires lower courts to certify statutes for review i when diey are convinced that the law tinder which a dispute arises is unconstitu- * tional,107 but only when a ruling of unconstitutionality would change the outcome of die case. Another is that only statutes passed since the ratification of the Basic ] Law qualify as subjects of concrete judicial review to be decided by die Constitu- tional Court. Any court may review and nullify on constitutional grounds pre-1949 i legislation as well as administrative regulations and local ordinances. These so-called I preconstitutional laws rank lower than laws passed since May 23, 1949.108 The Constitutional Court has ruled, however, that such laws are within the scope of its 1 concrete review procedure when they have been reentered or substantially amended ; under die Basic Law. The appropriate parties may nevertheless challenge an un- j touched preconstitutional law in an abstract judicial-review proceeding.m ! Finally, while the court does not enjoy discretion akin to the certiorari power of the Supreme Court, it does have limited control over its docket dirough the three-! Juc>ge chambers. Since 1993, the chambers have been empowered to decide concrete I review cases, provided the decision conforms to rules already laid down in previous I decisions by die senates. (In 1994, the chambers heard twenty of the twenty-eight j judicial references decided by the senates.) In addition, as we saw in chapter 1, these $% German Constitutionalism j chambers may reject trivial constitutional complaints as well as those unlikely to " ^ result in any clarification of an important constitutional question. Most constitu- -j tional complaints stem from judicial decisions. In reviewing such decisions, die ; \ court has steadfastly maintained that it will not act as a general court of review {RMsionsgerickt) Ordinary errors of fact and law arc not reviewable by the Federal Constitutional Court. On the other hand, an arbitrary finding of facts or a wholly unreasonable application of the law in a given case would not survive constitutional analysis. But where a complainant raises a constitutional issue under another court's reasonable interpretation of an ordinary law, the Constitutional Court usually confines itself to a determination of whether die lower court adequately t considered the values of the Basic Law. The court will usually sustain the lower \ ' court's judgment if that court assessed die statute in die full light of the relevant ;. constitutional values.111 ■ j Form and Effect of Decisions : The court applies most principles of constitutional interpretation with considerable | flexibility and prudence. On first impression, however, and contrary to die canons of judicial restraint mentioned in the previous section, the courťs decision-making j record might suggest a tribunal embarked on a path of reientiess activism. By January i, 199-2., the court had invalidated 423 laws and administrative regulations (or particular provisions thereof) under the Basic Law (scctablez.i). Of diese negative \ rulings, the First Senate decided 243 and the Second Senate 180, nearly 70 percent of which involved provisions of federal law, a figure explained by the predominant ; lawmaking role of the federal government in nearly every major area of public - J policy. The large majority of these rulings admittedly involved minor legal provisions, but a fair number featured important public policies in fields such as educa- 1 tion, taxation, employment, social insurance, and labor law.113 - i As table 2.1 indicates, die Constitutional Court may hold laws or regulations ; \ ''»||| Table 2.1. Invalidated Legal Provisions, 1951-1989 ■ ..si:: Federal law State law í Void incompatible Void Incompatible Total Senate First 108 81 37 17 143 Second 65 39 54 22 180 Total 173 119 91 39 423 Sostm: Compiled from statistical summaries provided by administrative offices of the Federal Constitutional Court (1992; typescript). Notr: The figures Include laws (Gatts) and administrative regulations {Vmmtmtnfftn). The Basic Law 53 that it considers unconstitutional cither null and void {nichtig) or incompatible [unvcrtinbar) with the Basic Law. When held to be nichtig, the statute immediately ceases to operate; when declared tmvminbar, the statute or legal norm is held to be unconstitutional but not void, and it remains in force during a transition period pending its correction by die legislature, a decisional mode diat now has die sanction of law and, as the table shows, is an option the court frequendy exercises.153 These ovcrrulings, however, are dwarfed by die number of laws or statutory norms that the court has sustained over the years. With respect to laws diat are upheld, the court distinguishes between so-called unobjectionable (unbeanstan-deten) norms and those held to be in conformity with the Basic Law. Unobjectional norms are those the court sustains in die normal course of deciding constitutional complaints. The other category includes statutory provisions questioned in concrete review cases but sustained in accordance with the principle diat requires the court to interpret a norm consistent widi die Basic Law. Between 1951 and 1993 these unobjectionable and verfassmigskonforme statutory provisions numbered i,3ó7.lw The practice of declaring a legal provision unconstitutional but not void is one of two strategics used by the court to soften the political impact of its decisions. This first strategy uses admonitory decisions {Appellentsdicidung) to tender advice to parliament with respect to statutes or legislative omissions that run afoul of die Basic Law or are likely to do so.115 This strategy of declaring a law or practice unconstitutional but not void is designed to prevent the greater hardship or inconvenience that would flow from die complete voidancc of a statute. How long and under what conditions an unconstitutional but unvoided law can remain in force is a matter the court reserves to itself to decide. The court usually sets a deadline for corrective legislative action and occasionally directs parliament to adopt a specific solution. More often the court lays down the general guidelines within which parliament is required to legislate.ufi Under the second strategy, the court actually sustains a challenged statute but warns the legislature that it will void it in the future unless die legislature acts to amend or repeal die law. Cases employing this decisional mode often involve equal protection claims arising out of statutes diat deny benefits or privileges to some persons while conferring them on others.1"* Such decisions arc prudential judgments designed to give die legislature time to adjust to changing conditions or to avoid the political or economic chaos diat might result from a declaration of unconstitutionality. By resorting to this procedure, die court keeps the constitutional dialogue going and furnishes parliament with the flexibility it needs to work out creative solutions to the problem under scrutiny. In some situations, however, when die court declares a statute unconstitutional and void, radier than keeping parliament in a quandary as to what alternative policy or program would survive constitutional analysis, it tenders "advice" that leaves little discretion to lawmakers.118 In the important Party Finance case (1966) it went so far as to tell parliament diat federal funding would have to be provided to minor politi- 54 German Constitutionalism The Basic Law 55 cal parties securing 0.5 percent of all votes cast in a federal election instead of the 1.5 percent limit previously established by law.119 In the well-known first Abortion case (1975; no. 7-to), which invalidated a permissive abortion statute, the court effectively rewrote the law, which parliament subsequently felt obliged to pass. This practice, as noted in die next section, has come under increasing criticism in Germany. These rulings, like all of die court's decisions, including those that declare a statute or other legal provision compatible with the Basic Law, have the force of law, and as a consequence bind all branches and levels of government.'20 In the Southwest State case (1951; no, 3.1) die court made it clear diat the binding effect of its decisions also bars the legislature from rccnacting a law after it has been declared unconstimtional. The binding effect principle applies to the actual ruling of a case and to the "essential" reasoning or rationale on which it is based. What constitutes "essential reasoning," however, is not always clear. It does not embrace all arguments marshaled in support of a given result, aftiiough it seems to include those basic standards of review in terms of wliich a law is sustained or nullified, for these standards bind courts of law in dieir own interpretation of ordinary law.121 The one exception to the binding effect rule is die Federal Coastitutional Court itself. (The rule of stare decisis does not bind the German judiciary.) While reluctant to depart from principles laid down in its case law, the court will readily do so if convinced that it erred in an earlier ruling. Indeed, as the Census Act case (1983; no. 7.6) underscores, constitutional provisions may themselves take on new significance in die light of changing social conditions. Whenever the Constitutional Court strikes down a law in whole or in part, die effect is prospective (ex tttnc). This rule is qualified, however, by a provision of the fcca that permits new trials in criminal cases in which a court convicts a defendant under a subsequendy voided statute.122 Statutes declared incompatible with the Basic Law but not void may continue to be enforced, but only under conditions laid down by the Constitutional Court. The effect of such decisions on other courts is substantial; they may not proceed with pending cases arising under such statutes until the legislature has amended or corrected the statute in conformity with die guidelines set by die Constitutional Court.123 It is important to remember that the Constitutional Court's rulings are exclusively declaratory. The fcca includes a provision that actually bars any direct enforcement of the court's rulings.124 Its decisions are "enforceable" through ordinary legislation and judicial proceedings. It is well to remember also that die court's jurisdiction is compulsory. It lacks a storehouse of "passive virtues" by which it might for prudential reasons avoid a ruling on a constitutional issue.125 Moreover, die court's declarator)' authority is sweeping, for it is at liberty to range beyond die immediate issue before it and review the constitutionality of any part of a statute challenged in an abstract or concrete judicial-review proceeding. To link judicial power of diis character with direct executive implementation would pose an enormous threat to representative democracy in Germany. The court's ultimate legit- imacy in the German system, as noted earlier, rests on its moral authority and the willingness of the political arms of the government to follow its mandates. The court's own sense of self-restraint is another key to its acceptance and durability. But the court is faced with a dilemma. If it is to perform its steering and j integrative role in die German system, objectify the values of the Basic Law, and ' bring constitutional normativity into conformity with constitutional reality, it must , rule, according to the modern German version of die Rechtsstaat, on a properly ! presented constitutional issue, even though such a ruling may dirust it headlong \ into a politically exposed position. The court has learned to cope with this politically j exposed position. For example, in cases involving disputes between high constitu- i tional organs (i.e., separation of powers, or Orjjanstreit, proceedings) or those brought by political minorities on abstract judicial review, the court occasionally J makes an ally of time, delaying decision until die controversy loses its urgency or is settled by political means, prompting die initiating party ultimately to wididraw , the case. Largely because of this tactic, die court has decided, up to 1995, only 51 of I die 107 Qrganstreit proceedings and 68 of the 124 abstract review proceedings sub- mitted to it. i l JUDICIAL REVIEW AND THE POLITY As this summary of constitutional review suggests, and as subsequent chapters I show, the Constitutional Court is at the epicenter of Germany's constitutional i democracy. "The Basic Law is now virtually identical with its interpretation by the 1 Federal Constitutional Court," remarked Professor Rudolf Smend on the court's } tendi anniversary.826 Already by the 1990s Smend's view was conventional wisdom among German public lawyers and constitutional scholars. Most scholars and legal ^ professionals accept the court as a legitimate participant in the larger community : decision-making process, a remarkable achievement of postwar institution building in the Federal Republic. Professor Christian Starck, one of the Basic Law's iead-j ing commentators, described this consensus when he referred to die court as die i "crowning completion of die constitutional state" and applauded its "decisive influ- ence upon die development of our constitutional law,"12? j We may hazard some guesses as to why West Germany's legal community j accepts die court as the final, authoritative interpreter of the Basic Law. First, and ' most obvious, die court functions as a specialized constitutional tribunal, widi clear audiority derived from the constitutional charter itself. Second, a democratic legisla-'{ turc chooses die members of the court just as it controls the court's organization and | procedures. Constitutionally prescribed recruitment procedures all but guarantee j that the court will consist of members acceptable to die established political parties and be broadly representative of established political interests, including the interests of the states as corporate entities within the German system. Third, after years 56 German Constitutionalism The Basic Law 57 of experimentation with various terms of office, including life tenure for justices elected from the federal courts, Germans settled for a simple, nonrenewable term of j twelve years for cadi j ustice, the effect of which is to secure both die courťs indepen- j dence and a continuing membership profile not too unlike that of parliament itself. Finally, parliament permitted die introduction of dissenting opinions in 1971 — a . :j practice barred in all other German courts—one sign of the growing maturity of t German constitutional jurisprudence. At the same time, the Constitutional Court, like the United States Supreme Court, often finds itself in die eye of a political storm. Despite its democratic legitimacy, or perhaps because of it, the Constitutional Court has developed into a j fiercely independent institution and has struck down large numbers of statutory ... ] provisions and administrative regulations. A veritable Blitzkrieg of public lectures, newspaper and television commentaries, articles in legal periodicals—some au- j thorcd by former justices—and legal monographs have criticized the court, although for the most part respectfully, for "judicializing politics" or "politicizing , justice."12" Some of these publications take the court to task for many of its admoni- . :| cory decisions, which in die view of some critics have turned die court into a quasi-legislative institution. The Abortion I, Party Finance IV, Census Act, East-West Basic . '{. Treaty, and Hißher Education Admission cases arc examples of decisions faulted for improperly exceeding the limits of judicial power.129 Even more devastating, other critics have charged, is the court's dampening effect on legislative confidence and mobility. Some argue that parliament legislates too much in the shadow of die court, fearful that its laws may run afoul of some judicial order, standard, or admonition.130 These critics point to the tendency of legislators to tailor their work to anticipated court decisions and to scrutinize constitutional cases for hints on how to shape public policy. If diis tendency does prevail, the courťs role in the polity is not \-\ exhausted by an analysis simply of its formal powers or its case law. The mere presence of the court would seem to inhibit certain kinds of legislative activity. This criticism, harsh as it is, is nevertheless predicated on a shared commitment to the court as an institution. There is another stream of commentary, however, identified mainly but not exclusively with nco-Marxist critics, that manifests far less sympathy for die courťs institutional roles in German politics. In the eyes of these , j critics, die court serves as a brake on social change and is the main force responsible for the imposition of a constitutional ideology that sanctifies consolidation and stability, defends the status quo, and promotes consensus politics. There may be some grounds for this criticism, for the court has often used its power—wi th prominent exceptions duly noted in the following chapters—to invalidate reforms regarded as progressive and liberalizing by large segments of German society.131 Still, the courťs prestige appears to be very high. A series of public opinion polls taken in recent years shows that it enjoys substantially more public trust than any other major political or social institution, including parliament, the military cstablisliment, the regular judiciary, the television industry, and even churches and universities.132 This public trust is also evident in the former East German regime. East Germans arc making appeals to the Constitutional Court in increasing numbers, just as the court, on a number of occasions mentioned in later chapters, has vindicated constimtional claims originating in tile new eastern states. The absence of any major political effort to curtail die court's powers despite its location at the center of many political storms is perhaps anodier manifestation of its general support throughout Germany. Even proposals by respected academic figures to abolish the court's controversial abstract judicial-review jurisdiction,13* which the court could well do widiout in light of the political manipulation that often accompanies die invocation of diis procedure, has fallen on deaf cars. The Constitutional Court's durability is traceable to more dian general public support. Tile court owes much to West Germany's community of scholars, despite the acerbic pens of some writers. The literature on the court, ranging from doctrinal controversy in professional journals to informed media accounts of particular cases, is comparable to the volume and sophistication of commentary on the United States Supreme Court. German commentators form an ever-widening interpretive community organized around a deepening interest in die court's work. According to Professor Peter Haberle, among the most learned of Germany's judicial scholars, die commentators see themselves engaged in a common enterprise with the Federal Constitutional Court.134 Their constructive criticism and increasing asscrtiveness have been stimulated in part by the use and popularity of die court's own dissenting opinions.138 The high-spirited give-and-take between die justices and die commentators has become an important clement in the growing maturity of German constitutional law and consciousness. That both court and commentators sec diemselves engaged in actualizing die Constitution in the public life of the nation undoubtedly reflects the authoritative role of constitutional commentary in argumentation before the court and in die general influence of die professorate on and off the bench. The court's twenty- fifth anniversary celebration was an important symbol of this cooperation between bench and academy. Professor Christian Starck, a former law clerk to Justice Herbert Scholtissek and himself a leading commentator on the Basic Law, delivered a brief address before die assembled justices in the name of all German constitutional scholars,136 while Chief Justice Ernst Benda in response acknowledged the "critical importance" of their "partnership" with die justices in contributing to die court's total work product.'37