Published in Frankfurter Allgemeine Zeitung, FAZ.NET (May 18, 2009)
Click here for original article in German
Have we taken the concept of constitutional patriotism too far? Some constitutional scholars are adding to the festivities surrounding the anniversary of the German Republic the thesis that the success of the Basic Law during the past 60 years has in itself imperiled German democracy. In fact, the constitution has been stylized as a sacred text, resulting in inordinate restrictions on the legislative discretion of the parliament not due to the will of the framers of the constitution, but due to the bigoted previous understanding of the interpreters of the Basic Law. The foremost US authority of the Basic Law does not share this concern voiced by German liberal positivists.
Donald Kommers, Professor of Law at the University of Notre Dame Law School in Indiana, USA, and the author of the leading English textbook on the constitutional law of the Federal Republic delivered a talk on the history of the past sixty years of the Basic Law before the American Academy in Berlin; in his lecture, he compared it with the American experience in a consistent and clear manner. According to Kommers, the sacralization of the original republican text characterizes the entire history of the interpretation of the US Constitution. On the other hand, by American standards, the fate of the Basic Law within the political system that had been originally constituted by that very Basic Law would have to be considered a desecration [very pedestrian document].
Kommers explained the contrast by pointing out the differences in the handling of the constitutional text in the simplest and most practical meaning of the word. Because they almost continuously rewrite the Basic Law Germans are not treating their Basic Law as Sacred Scripture [untouchable]. The American constitution has been changed only twenty-seven times during the 222 years of its existence, while, in its sixty-first year, the Basic Law has already been scheduled for its fifty-fifth change. The hurdles for amending the Constitution in the United States are much higher, requiring not only three-thirds majorities in both the Senate and in the House of Representatives, but also fully three-thirds of the total number of individual state legislatures with two chambers each must approve. Though introduced in 1789, the procedure for constitutional change led to the most recent constitutional change in 1992 [with the 27th amendment].
The varying procedures [for amending the Constitution] correspond to different perceptions of the integrity of the constitutional text. The changes in the Constitution of the United States are termed ‘amendments’, that is revisions that are attached and numbered without altering the text of the original constitution. On the other hand, in the Basic Law a new clause typically replaces a previous formulation. This illustrates the fact that the Basic Law regulates a great many more details. Kommers noted that from a systematic point of view, the Basic Law represents a hybrid between a constitutional and a legal code, and, like every legal code in our modern times, is destined for growth. Thus, any aesthetic objections voiced by the President of the Federal Parliament (Bundestag) against the lack of form present in the proposed articles concerning debt reduction touch on a structural element of the Basic Law.
The Ironclad Article 5 of the US Constitution
In 1956, the Basic Law was amended to permit Germany=s remilitarization (Wehrgesetzbuch). In 1968, it was amended again to deal with a national emergency (Notstandsgesetzbuch). Both amendments were extremely controversial. Kommers took a favorable view of these amendments even though they were highly controversial in Germany. emphasizes that the Basic Law assures democratic freedom by expressly defining the executive powers invoked as implications of their position by US presidents from Lincoln to Bush and on to Obama. [This last sentence is an accurate translation from the German, but the message is garbled. What I did was to take note of a glaring deficiency in the U.S. Constitution and that is its failure to clearly define congressional and presidential power in the field of foreign and military affairs. I noted decisions by executive decree by Lincoln in the Civil War and Bush in the war on terror to underscore the extent to which presidential power has outstripped Congressional control over that power, noting that this could not happen under the 1956 and 1968 amendments to the Basic Law.]
The American constitutional model which wants to be only a framework and which is, therefore, not really in need of change, but, at the most, of being amended, has always been admired by people in the Federal Republic. Regarding the methods of constitutional change, Kommers decidedly prefers the German method. Together with many of his colleagues, he sees the structural problems of the separation of powers in the United States; he insists that their removal is de facto impossible because of the intricateness of the amendment process of Article 5 of the US Constitution. The President of the United States is still indirectly elected, the less populated federal states enjoy disproportionate influence in the Senate; also, the US Constitution lacks a provision allowing for the removal of an incompetent president, while impeachment proceedings apply only in cases of criminal activity.
According to Kommers, the longevity of the US Constitution is sometimes mentioned too readily because people overlook the system=s collapse in 1860. Kommers called Lincoln=s second inaugural address the most influential act of constitutional interpretation in US history. Ever since, there are no longer any doubts about the Union=s indissolubility despite the fact that the wording of the Constitution does not explicitly forbid an individual federal state from leaving the Union. Accordingly, the unitary federal power which had been created as a result of the Civil War, is hindered by a mechanism of constitutional change whose principle of adding sovereign rights to individual states is deemed anachronistic. Article 5 he described as an Airon cage.@
Kommers’ advice to submit the Basic Law to a belated plebiscite tended to take away from this assessment, however only with regard to the five new federal states that joined the Federal Republic of Germany in 1990. Could it not be said that the demonstrations for unification during the winter of 1989/90 and the German Democratic Republic=s parliamentary elections of March 18, 1990 (AVolkskammerwahl@) were equivalent to Lincoln=s address, and that they cleared the way for the issue of legitimacy? It is interesting to note that Kommers, too, acknowledges even for the Federal Republic within the realm of federalism the technical constitutional problems of an alignment of institutions blocked by constitutional provisions. He is apprehensive about the fact that the 2006 reform of federalism increased the veto power of the Federal Council even more. In fact, he insists that the body representing the federal states (ABundesrat@) was not conceived as an upper or second chamber, but that, today, as a power in its own right it is positioned between the Government and the Parliament (ABundestag@).
The Prohibition of Article 79, Section 3 of the Basic Law
The division of the Federation into individual federal states and their participation in the making of laws constitute two principles that, according to Article 79, Section 3 of the Basic Law, are beyond the reach of constitution-changing lawmakers. The liberal-positivistic criticism of the dogmatization of the Basic Law proceeds from this so-called perpetuity clause (Frankfurter Allgemeine Zeitung, November 24, 2008). Kommers admitted that this clause seems to alienate American readers of the Basic Law. The notion of constitutional law violating the constitution does not seem plausible to American readers. Quoting the words of John Marshall, the highly influential president of the US Supreme Court, Kommers states that the entire constitution of the United States is designed in ways that are intended to make it approach perpetuity. However, this goal is not laid down in the text of the Constitution. The freedom of the constitutional lawgiver is restricted only in one area: the guarantee of equal representation in the Senate for the Federal States.
It may be possible to make Article 79, Section 3 of the Basic Law plausible to Americans by adapting a concept of David Humes=: The clause does not attribute a kind of perpetuity to the Basic Law, one on which only the future can pass judgment; rather it is to anticipate the euthanasia of the constitution, that is the stealthily creeping murder at the hand of disfiguring changes. Even when understood in this fashion, the clause represents a difference to American constitutional thought, which is comprised of a hierarchy of truths: Since the Basic Law guarantees a plethora of overlapping demands (titles?) constitutional interpretation ends up being confronted with adopting a situational gradation in accordance with a guideline taken from the constitution itself. On the other hand, the US Constitution presents itself as an enumeration of right which seem to exist harmlessly parallel to one another.
In view of this contrast between two constructive principles, Kommers proposes one ought to turn to constitutional content by contrasting the Basic Law as a constitution of human dignity with the US Constitution as a constitution emphasizing freedom. The basic rights stipulated by the Bill of Rights represent absolute positions of negative freedom, whereas the basic human rights of the Basic Law concretize a kind of dignity from which issue the duty of protection and the need for (fair?) balance.
The hermeneutics of the objective order of values which the Federal Constitutional Court derived from the fundamental decision in favoring human dignity is viewed as a separate German creation which was prompted by the restorative spirit of the 50ies, as a projection by the Christian state that does not differentiate between right (law?) and morality. It is precisely to this pattern of interpretation advocated by the justices in Karlsruhe (AKarlsruher Interpretationslehre@) accompanied by keen intellectual criticism that Kommers attributes the double-natured success of the Basic Law within German and in the world at large. Thus, the findings of the Federal Constitutional Court changed the constitution to a greater degree than all those explicit changes made in the Basic Law. It was with joy and embarrassment that the birthday present by this expert on and friend of our constitution was accepted by everybody: The Basic Law, Donald Kommers insists, has taken the place of the American Constitution as a model for democratic constitutions.
Dieter Grimm, who, as justice serving on the German Constitutional Court, acted as legal consultant during proceedings dealing with the making and changing of constitutional law, moderated the talk with the greatest amount of satisfaction. According to Kommers, Grimm stated, young democracies determined to introduce constitutions advocating human dignity are not shopping for old hats stored away among the relics of the Western World. They rightly recognize that the law must be elevated to the level of social effectiveness, thus accepting jurisprudence=s additional third role as a provider of constitutional fundamental rights even among private people. The US Constitution whose individualism had originated based on the contractual thinking prevalent during the eighteenth century, has never adopted this thought. Thus we are still export champions, albeit in the realm of constitutional law C precisely with the assistance of the kind of high class German workmanship that is readily ridiculed by many a sophisticated German legal scholar. (1772)