Vol. 5 No. 4 (April, 1995) pp. 133-136
THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY by David P.
Currie. Chicago: The University of Chicago Press, 1994. xxvii+
426 pp. Cloth $35.00.
Reviewed by William B. Gwyn, Department of Political Science,
Tulane University.
A leading authority on the development of constitutional law in
the United States, David P. Currie, in recent years has been
thoroughly investigating the constitutional law of the Federal
Republic of Germany as interpreted by the country's powerful and
highly respected Federal Constitutional Court. The major result
of this research is the outstanding book here reviewed, which
joins the author with Donald P. Kommers as the foremost American
authorities on the subject. While Kommers' THE CONSTITUTIONAL
JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY(1989) is a
mixture of casebook and commentary, Currie's somewhat shorter
book is pure commentary and provides the reader with a more
comprehensive account of German constitutional law. The two works
complement each other to a considerable extent and their intended
American audience would do well to consult both of them .
"The aim of this book," Currie tells us, "is to
explain the essential features of the Basic Law as illuminated by
the decisions of the Federal Constitutional Court and compared
with the Constitution of the United States." (p. xiv)
Although he declares that his approach is "descriptive and
comparative" (p. 337), he is not altogether unconcerned with
evaluation. For example, after examining the court's decisions
concerning freedom of expression, he observes, "In all this
there is much food for thought as to the proper role of a
constitutional court as well as the proper scope of free
expression and of the cognate rights that help to make it a
reality. And that, in addition to the more modest but equally
worthy goal of better understanding, is what comparative law is
all about." (p. 243) Unfortunately, Currie rarely pursues
this normative aspect of the subject. He does express his general
opinion of the German constitution and the function of the
Constitutional Court in interpreting it.
"The Basic Law has been a resounding success.... Forty-five
years under the Basic Law has meant forty-five years of
democracy, freedom, and the rule of law. In making the noble
phrases of the Basic Law a reality the Constitutional Court has
played a central role. In case after case it has vindicated basic
rights. Unlike our Supreme Court, it has given up neither on
federalism nor the separation of powers. And since its inception
the Constitutional Court has been unhesitatingly obeyed."
(p. 339)
Currie's remark about the separation of powers in he United
States is puzzling given the large number of Supreme Court
decisions evoking that doctrine during the Reagan administration.
In light of his very positive opinion of the Basic Law and the
Court, it is not surprising to find Currie optimistic about the
political stability of Germany. "Absent some cataclysmic
event,...the past may have value in predicting what is to come;
and the recent constitutional history of Germany is
reassuring." (p. xi)
Page 134 follows:
The book is directed mainly toward persons with considerable
knowledge of American constitutional law. Comparisons of American
and German experience pervade the book. Readers not well versed
in American constitutional law may often not find these
comparisons very helpful unless they resort to American sources.
On the other hand, all American readers will learn much about the
decisions of the German Constitutional Court in Currie's clearly
written analysis, which is based on the ninety volumes of case
reports published since it began operations in 1951 as well as
the major multivolume German commentaries on the Basic Law.
Persons aware of American constitutional law casebooks and
commentaries will find the arrangement of the book very familiar.
The opening chapter, after a brief history of former German
constitutions, discusses the general character of the Basic Law
and the Constitutional Court. Then follow chapters on "The
Federal System", "Separation of Powers",
"Freedom of Expression", "Church and State",
and "Other Fundamental Rights" (concerning marriage;
the family and private schools; occupational freedom; life,
liberty, and family - including abortion - and equality -
including sex discrimination). The Federal Republic's long and
detailed Basic Law is added as a seventy page appendix that
readers will find themselves frequently consulting. One hopes
that future editions of what will likely be a standard work on
its subject will include tables of cases and constitutional
provisions.
Because of the practice of recording the authors of only
dissenting and concurring opinions, Currie and other commentators
on the German Constitutional Court are precluded from analysis of
the jurisprudence of individual judges so standard regarding
justices of our Supreme Court. He, however, does ably record
important changes in the Court's interpretation of the Basic Law
and explains the principles and interpretative rules influencing
judicial decisions.
Although, like the Supreme Court, the Constitutional Court
frequently exercises judicial restraint in considering the
actions of other parts of the government, it has not hesitated to
invalidate them on several notable occasions. Again as in
America, judges in Germany are allowed much discretion in
interpreting the constitution by the presence of open-ended,
indeterminate words and phrases in the document. For example,
Article 1 ( 1), which is unamendable according to Article 79,
states, "Human dignity is inviolable. To respect and protect
it is the duty of all state authority." As Currie comments,
"Obviously this language leaves a great deal of latitude for
interpretation." (p. 314) This is equally true of Article
2(1 ) which guarantees everyone "the right to the free
development of his personality," which "is no more
self-defining in German than in English" and which has been
interpreted by the Court as "a general right of freedom of
action," which in turn permits judicial review of the
reasonableness of all restrictive governmental acts. (pp. 316-7)
Although he approves of the use so far made of this authority.
Currie raises but does not answer "the question whether so
broad a power, however wisely exercised, is consistent with one's
conception of democracy . " (p . 3 3 8 )
Besides the open-ended words of the
Page 135 follows:
constitution itself, the Constitutional Court has interpreted the
Constitution as including several equally vague principles which
allow for further judicial creativity. While such principles have
also been discovered in our own constitution -- e.g., the
separation of powers -- it does seem that the minds of German
jurists are especially fertile in discovering them in the Basic
Law. The following list is hardly exhaustive. The principle of
the "Rechtsstaat" embraces considerably more than the
Anglo-American concept of the rule of law, including the
"principle of proportionality" which requires the
legislature when restricting any of the basic rights guaranteed
by the constitution to use means appropriate to a legitimate end,
reasonably related to that end, and imposing the least
restriction on the rights. The principle of the
"Sozialstaat" (the social welfare state), although by
itself it has not been used by the Court to invalidate any
government action or inaction, has, according to Currie,
"exerted a powerful influence on the interpretation and
application of the laws." (p. 23) The principle of
"Streitbare Demokratie" (militant democracy) is a
reflection of the relative youth of the regime and the overthrow
of Germany's previous attempt at democracy. Based on Articles
21(2), 9(2), 5(3), and 18 of the Basic Law, it allows for the
suppression of any actions (including speech and press) and
organizations (including political parties) aimed at destroying
"the free democratic order." While noting that the
United States Constitution contains no similar provisions, Currie
perceptively observes, "The fact is that in periods of real
or imaginary danger we have tended to adopt measures strikingly
similar in effect to those expressly countenanced by the Basic
Law, and the Supreme Court has tended to uphold them -- in the
teeth of an ostensibly absolute protection." (p. 215) The
"Bundestreue" principle legally obligates the parts of
Germany's federal system of government to remain faithful to the
system. The principle, which has no counterpart in the United
States, requires not only that the states not encroach on one
another's authority and that the state and federal governments
respect each other's authority but also that the parts of the
federal system positively assist one another. According to
Currie, "Although there seems to have been a general
tendency toward increasing central authority in Germany,
constitutional limits on federal power remain a reality. Unlike
our own Supreme Court, the Constitutional Court [on the whole]
has faithfully defended the prerogatives of the states." (p.
101 )
Especially interesting for students of comparative politics is
the "Gewaltenteilung" principle (separation of powers),
which may appear to be an oxymoron to persons mistakenly
accustomed to perceiving parliamentary systems as rejecting a
separation of powers for a "fusion of powers." As in
the United States Constitution, the principle is not explicitly
stated in the Basic Law. In the important KALKAR CASE of 1978,
the Constitutional Court observed, "Separation of Powers is
not specifically mentioned in the Constitution. Its validity,
however, follows from the terms of Article 20(3). (Quoted in
Kommers, p. 151) Article 20(3) reads, "Legislation is
subject to the constitutional order; the executive and judiciary
are bound by law and justice." Equally if not more relevant
is Article 20(2):
Page 136 follows:
"All state authority emanates from the people. It shall be
exercised by the people through elections and voting and by
specific ("besondere") legislative, executive, and
judicial organs." In the court's opinion it would be
incorrect to deduce from "the principle democracy" a
"monistic theory of power...which would confer monopoly
decisionmaking power on parliament" and "undermine the
concrete distribution and balance of political power guaranteed
by the Basic Law."(Ibid., pp. 150-151) Obviously, in a
system of parliamentary government which allows the lower chamber
of the legislature to replace the members of the political
executive and not only cabinet ministers but also civil servants
to be members of the legislature, there is considerably less
separation of the executive from the legislature in Germany than
in the United States. The Constitutional Court in the 1972
JUDICIAL QUALIFICATIONS CASE recognized that "the principle
of the separation of powers is not...realized in pure form in the
federal arena. Numerous interconnections and balances
exist." However, even "if the separation of powers
cannot be understood as meaning a clear-cut separation of the
functions of political power, [the Court] must retain the
distribution of weight among the three powers as outlined by the
Constitution. No branch may obtain a predominance not intended by
the Constitution over another power. Nor may [one branch] deprive
another of the authority which is needed to fulfill its
constitutional tasks." While one branch to some degree might
exercise an activity associated with another branch, "the
core functions of the different governmental branches cannot be
altered. This precludes one of the powers from relinquishing
tasks which -- according to the Constitution -- are typically
within its purview." (ibid., p. 158) Such reasoning is very
similar to that of our own Supreme Court in recent separation of
powers cases. Also like our judiciary, one of the most important
areas for Constitutional Court action regarding the separation of
powers has been determining the degree to which parliament may
delegate legislative power to the executive.
It is clear from Currie's account that the German Constitutional
Court, the constitution it interprets, and the judicial culture
that informs its opinions are in several important respects
different from their counterparts in the United States. However,
Currie leaves us with the impression that with regard to those
things contributing most to the success and stability of
constitutional democracy the two countries' constitutions and
jurists are much alike.
Reference:
Kommers, Donald P. 1989. THE CONSTITUTIONAL JURISPRUDENCE OF THE
FEDERAL REPUBLIC OF GERMANY. Durham, N.C.: Duke University Press.