Miller and Kommers on the German Federal Constitutional Court

Das Bundesverfassungsgericht: Procedure, Practice and Policy of the German Federal Constitutional Court

Russell Miller

Washington and Lee University - School of Law

Donald P. Kommers

affiliation not provided to SSRN



Journal of Comparative Law, Vol. 3, No. 2, p. 194, 2009
Washington & Lee Legal Studies Paper No. 2011-37

Abstract:     
Karlsruhe was the capital city of the Grand Duchy of Baden (1806-1918). During the Weimar Republic, Karlsruhe continued as the capital of the Republic of Baden (1918-1933). After the Allies crushed Hitler's Nazi regime, they reclaimed Baden from the centralizing and totalitarian policy of Gleichschaltung and used it as an Allied Occupation Zone that was shared by American and French forces. Karlsruhe was the Zone's hub. But Karlsrughe's run as a regional capital soon met its end. As the map of the Federal Republic of Germany was being drawn strong arguments were advanced for merging Baden with its neighboring rival Wüttmberg. The Federal Republic's founders could not settle the emotional and hotly contested question during the Parlemtarischer Rat (Parliamentary Council or constitutional convention) and left it to the states themselves to resolve the Southwest State' question. When these rivals failed to reach a settlement, the federal government intervened and ordered a merger of the regions into the single state Baden-Wüttemberg, subject to approval in a federally coordinated referendum to be held in the relevant localities. Baden, fighting its demise by absorption, challenged the federal intervention and referendum before the new Bundesverfassungsgericht (Federal Constitutional Court).

The Court's Southwest State Case (1951), its first major decision, realized Baden's worst fears about its century and a half run as a regional capital. The Court explained: "In the case of the reorganization of federal territory consigned to the federation, it is the nature of things that people's right to self-determination in a state be restricted in the interest of the more comprehensive unit. The Second Senate of the Court allowed a federally orchestrated referendum to go forward, and the new, merged state of Baden-Wüttemberg resulted with its capital in Stuttgart. Karlsruhe, the proud and charming 'fan city' seemed fated to the ignominy of struggling on as Baden-Wüttemberg's 'second city.’

But out of the Southwest State Case came no small portion of redemption for Baden and, most especially, Kalsruhe. Afterall, Karsruhe is the seat of the Federal Constitutional Court. And, as the Court's first major decision, Southwest State launched the Court into the prominent role it has played in the German polity. Some have gone so far as to describe the case as 'Germany's Marbury v. Madison, analogizing it to the epochal US Supreme Court decision widely credited as the fons et origo of judicial review. From this perspective, Southwest's foundational character is rooted in the general principles of constitutional interpretation stated therein and in the clarity - and forthrightness - with which the Constitutional Court defined the scope of its authority under the Basic Law. The Court boldly asserted that its judgment and the opinion on which it rests are binding on all constitutional organs, even to the extent of foreclosing parliament from debating and passing another law of the same content.

Southwest State was the first major sign of the significant role the Court would play in the new Federal Republic. The Grundgesetz (Basic Law of Constitution) itself virtually assured that the Court would play such a role, for it confers upon the Court wide-ranging powers that place it near the epicenter of Germany's political system. In the years since, armed with these powers, the Court has found itself banning political parties as unconstitutional, striking popularly enacted legislation, policing federal-state relations, monitoring elections, overseeing the dissolution of governments, and perhaps most significantly, defining and enforcing a regime of individual rights that fairly can be described as its most important contribution to the development of Germany's constitutional democracy.
Number of Pages in PDF File: 19
Keywords: Democracy, Transnational Law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982674