Comparative Constitutional Law Class 16 German Constitutional Institutions and Interpretation

Wrap-Up Last class, we continued to examine the constitutional structure of the German federal state, its system of separation of powers, and its main constitutional institutions (Bundestag, Bundesrat, Chancellor, President, FCC) We considered amendment of the GG We discussed the Bill of Rights in the GG

Federal Constitutional Court We discussed the authority and jurisdiction of the FCC (which, unlike US, has abstract judicial review), its heavy workload in the area of constitutional complaints (no leave required), and how its opinions are generated (more collective process than US) We discussed how the judges are selected (half by Bundesrat and Bundestag)

Social Norms Affecting Judicial Review

Social Norms Affecting Judicial Review in Germany Legal education? Specialization? Style of judicial decision making? Civil law tradition? Parliamentary system?

Interpretation Are there any provisions in the GG analogous to the Ninth Amendment of the U.S. Constitution or Section 27 of the Canadian Charter of Rights and Freedoms (compare with Australian constitution)

Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Canadian Charter of Rights and Freedoms Section 27: This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians

Tensions and Conflicts in GG E.g. GG Art. 12a(1): Only men subject to military service GG Art. 3(2): Equal rights extended to both men and women

Vague concepts Human dignity (Art. 1) Freedom of Conscience

Art. 1 ARTICLE 1 [HUMAN DIGNITY] (1) HUMAN DIGNITY SHALL BE INVIOLABLE. TO RESPECT AND PROTECT IT SHALL BE THE DUTY OF ALL STATE AUTHORITY. (2) THE GERMAN PEOPLE THEREFORE ACKNOWLEDGE INVIOLABLE AND INALIENABLE HUMAN RIGHTS AS THE BASIS OF EVERY COMMUNITY, OF PEACE AND OF JUSTICE IN THE WORLD. (3) THE FOLLOWING BASIC RIGHTS SHALL BIND THE LEGISLATURE, THE EXECUTIVE, AND THE JUDICIARY AS DIRECTLY APPLICABLE LAW.

Art 2 ARTICLE 2 [PERSONAL FREEDOMS] (1) EVERY PERSON SHALL HAVE THE RIGHT TO FREE DEVELOPMENT OF HIS PERSONALITY INSOFAR AS HE DOES NOT VIOLATE THE RIGHTS OF OTHERS OR OFFEND AGAINST THE CONSTITUTIONAL ORDER OR THE MORAL LAW. (2) EVERY PERSON SHALL HAVE THE RIGHT TO LIFE AND PHYSICAL INTEGRITY. FREEDOM OF THE PERSON SHALL BE INVIOLABLE. THESE RIGHTS MAY BE INTERFERED WITH ONLY PURSUANT TO A LAW.

Art. 4 1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.

Role of the FCC Harmonize inconsistencies Find order in inconsistency and paradox Balance fundamental values (federal, democratic, militant, social, liberal, party- directed)

Important Interpretative Principles under the Basic Law Proportionality Practical concordance

Importance of Interpretation vs. Amendment Reluctant to leave major changes to judicial interpretation

Objective Values What is an objective value and how does it differ from a fundamental value as proclaimed by U.S. Supreme Court? What objective values are highest in hierarchical status?

Objective Values What objective values are highest in hierarchical status? Principle of human dignity Value of human life Value of free development of personality

Balancing Rights and Values How did the FCC balance rights and values in the abstract review proceeding Abortion I? In the Lebach case (1973) (compare with Time v. Hill (1967)

Negative and positive rights What is the difference between a negative and a positive right? Between a positive right and an objetive value?

Luth and horizontal effect What is the doctrine of horizontal effect

Luth: constitutionalization of private law

Constitutional Interpretation: compare use of the following with Australia, Canada, US Unwritten principles? Legislative history of the Basic Law? Case law? Academic writing? Comparative and international law Structural interpretation Textual interpretation