A BRILLIANT TAKE ON GERMANY'S C0NSTITUTIONAL HISTORY (II)

- Alexander Thiele. Der Konstituierte Staat. Eine Verfassungsgeschichte der Neuzeit. Frankfurt: Campus Verlag, 2021.

Part II. The Bundesverfassungsgericht

On page 372, Alexander Thiele mentions « Karlsruhe ». This is, of course, a reference to Germany's Federal Constitutional Court, located in that city. To those of us who do not have German as our Muttersprache, this simple term —Karlsruhe— provides considerable relief. The original word is more intimidating: Bundesverfassungsgericht. More intimidating still are terms like Verfassungsgerichtspositivismus, Verfassungsgerichtsbarkeit or even: « Verfassungsgerichtswissenschaft ist [...] Verfassungsgeschichtlichtswissenschaft » (p.369). There seems to be something like a language barrier here. This is a pity, because it hinders our familiarity with this institution, largely (and deservedly) seen as one of the key pillars of the German Wunder. 

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The Bundesfervassungsgericht is omnipresent in Der konstituierte Staat. This is excellent news because it helps us better understand the specific elements of German constitutionalism. To be sure, Dr. Thiele (AT) shows great admiration and respect for the achievements of the American —and even for the French— revolution. He devotes as much as four pages to the groundbreaking U.S. Supreme Court's 1803 decision in Marbury vs. Madison [1].  And here's precisely where the differences start. While SCOTUS is "the highest tribunal in the nation", Karlsruhe is inherently and from the start organized as « Verfassungsgericht » or Constitutional Court. The difference matters enormously.

 

Here's the key point: while SCOTUS doesn't concern itself with the (necessary) incompleteness of the Constitution, and leaves the delimitation of competences largely to the political process, the Bundesverfassungsgericht immediately deals with political conflicts and constantly issues decisions. Through the procedure known as Organstreitverfahren, Karlsruhe clarifies whether an impugned measure is indeed in breach of the Basic Law (the Constitution or Grundgesetz, abbreviated as GG) [see]. The political conflict is, so to say, tué dans l'œuf. Prof. Thiele concludes: German law at all levels is penetrated by constitutional stipulations to a much higher degree than it is in the United States. And this is a fundamental difference.

Because it is much more hostage to the vagaries of (natural) political conflicts than Karlsruhe will ever be, SCOTUS can easily fall pray to the 'spirit of party', as was evident during the last year of Donald Trump's presidency. This leads to less prestige and influence, which only exacerbates the political conflict as the offended party naturally weighs the possibility of 'packing' the Court, a menace that still lingers on. As the 1949 GG went into effect in Germany, it was from scratch designed as « Antithese zum nationalsozialistische Terrorregime » (antithesis to the nazi terror regime). The Bundesverfassungsgericht wasted no time in showing leadership, as it built its case law upon the GG's declaration of rights that placed human dignity (Menschenwürde) as the cornerstone of German constitutional law.

AT cites groundbreaking decisions on the limits of the freedom of expression (Lüth, 1958), on freedom of movement (Elfes, 1957) and on the military as the Army of the Parliament, to show that Karlsruhe exercised its leadership in the direction of a defensive democracy (the rulings are still binding). The actions of the Bundesverfassungsgericht amount to "more than 100 volumes of decisions" that, together with the text of the GG itself, form the bulk of German constitutional law. To be sure, the German approach to judicial review has some drawbacks. There is always the risk that the public perceives that healthy political debate is artificially stifled, or that Karlsruhe could rule on the basis of its own aggrandizement (Machtausübung, p. 370). 

The problem of Die Zasür der Neuzeit

In 2010, Mogens Herman Hansen (MHH), the Danish historian of ancient Greek institutions, published a paper that caught my attention because it deals with the history of political checks and balances, a notion that is very close to my heart [2]. According to MHH, the workings of the Bundesverfassungsgericht should be understood in light of the ancient, venerable idea of 'mixed government', which provides more robust checks and balances than the normative theory of the separation of powers. This is the key passage:

... between 1951 and 2000 no less than 132,000 cases were brought to the German constitutional court in Karlsruhe. Most of the cases heard by the court consisted of constitutional complaints concerning violations of fundamental rights and freedoms guaranteed by the German Basic Law, but during the fifty years in question the court has also quashed five percent of all laws passed by the Bundestag, i.e. the German parliament. To quash a law by a verdict pronounced by a court is in itself a breach of the separation of functions.

But the mixing of functions cuts deeper than that: in most cases the law in question is not rejected outright by the court. With its verdict the constitutional court can submit a revised version of the law which the court can accept as constitutional and in such cases the Bundestag simply ratifies the revised version. The constitutional court has in fact become a third legislative chamber [...] It is an undemocratic institution set up to defend the democratic ideals. 

As MHH suggests, the members of the Bundesverfassungsgericht are in fact an élite that looks a lot like οἱ ἄριστοι of the classical, mixed regime theory. A simple look at the body language is useful here. The members of the Bundesverfassungsgerich all wear beautiful, red and ostentatious togae. There is a purpose here: people need to see that the justices are different from them. Argentine justices do not wear a toga. They wouldn't dare—they know that they are, most of them, under the spell of the strongman/strongwoman du jour.

And if the influence of the monarchical principle is still visible in modern-day Germany [see], then the idea of the apparent Zasür der Neuzeit, or 'clean break' with the past, presented in chapter 1 of Der konstituierte Staat, is open to challenge. Dr. Thiele himself acknowledges that the monarchical principle stands in the way of the separation of powers (p. 190). In fact, as the editors of the Founders' Constitution put it, the single executive is precisely the place where the old idea of mixed government meets the 'modern' theory of the separation of powers. 

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There is no such thing as a 'clean break' from the old, traditional theory of the mixed government. Its key principles are κατὰ φύσιν—they will always be with us. I'll come back to this idea in more detail in further posts. It's interesting to note that Dr. Thiele does not mention James Harrington in his references to 'modern' authors. Whoever decreed that Hobbes was more important than Harrington made a great disservice to political science. And it's not just about a bibliographical reference. The theory of the mixed government can still be useful, if one carefully adjusts it to reflect our XXIth century reality, to explain many aspects of our modern lives. 

[1] See the very detailed analysis by Manuel José García-Mansilla: "Marbury v. Madison y los mitos acerca del control judicial de constitucionalidad", Revista Jurídica Austral, Vol. 1, No. 1 (junio 2020): 9-89 (1, 2).

[2] Mogens Herman Hansen: "The Mixed Constitution versus the Separation of Powers: Monarchical and Aristocratical Aspects of Modern Democracy", History of Political Thought, Vol. XXXI, No. 3, Autumn 2010, pp. 509-531 [see].

[TO BE CONTINUED...]
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