Andrew Keating
In the German Basic Law, the introduction and passage of a
constitutional amendment is relatively similar to that of an ordinary law, with
a few differences. As it is defined in Article 79, “this Basic Law may be
amended only by a law expressly amending or supplementing its text.” (1) The Basic
Law, then, is essentially amended through the passage of a bill, which can be
introduced in the Bundestag by the Federal Government, the Bundesrat, or from
the floor of the Bundestag itself (Article 76). Unlike a typical bill, which
simply requires a majority for passage, a constitutional amendment requires a
two-thirds approval from both the Bundestag and the Bundesrat. While most
elements of the Basic Law can be changed via amendment, the articles defending
human rights and the applicability of the Basic Law itself (Articles 1 &
20, respectively) may not be changed. Additionally, no amendment may change the
division of the German State into Länder, or take away the Länder’s ability to
be represented in the legislative process (Article 79).
The German
Basic Law was written and ratified by a Parliamentary council (2), consisting
of academics, regional ministers, and government officials, under the
supervision of occupying forces. While it was written and ratified by a
constitutional convention (given that we consider the Parliamentary council to
be one), the German Basic Law does not require a constitutional convention to
be amended. As mentioned previously, a simple two-thirds majority in the
Bundestag and Bundesrat is enough to pass an amendment. While this two-thirds
majority requirement would hypothetically make amendments to the Basic Law
difficult, the German Basic Law has actually been amended over fifty-five times
since its inception in 1949 (3).
For issues
of Judicial Review, Germany uses what Lijphart calls a “centralized system of
judicial review” (4). In this kind of system, constitutional courts are set up specifically
to make decisions regarding the constitutionality of laws. These constitutional
courts operate outside of the main court system. An ordinary court can submit a
question about a law to the constitutional court, but ordinary courts may not
make a determination of constitutionality themselves. The German Federal
Constitutional court works essentially works in fashion. The Federal Court is
given the power to rule on pretty much any conflict or question of a
constitutional nature, per Article 93 of the Basic Law (along with the long
list of powers attributed to it in the Basic Law, the constitutional curt may
receive even more powers via legislation). As such, this constitutional court
has a very active role in judicial review, and can apply “informal” amendments
to the Basic Law through the interpretations they choose to make in this
process. In fact, Lijphart considers the strength of judicial review in Germany
second only to that of the United States.
(1) German Basic Law, https://www.constituteproject.org/constitution/German_Federal_Republic_2012
(2) “Opening Ceremony for the Parliamentary Council”
http://germanhistorydocs.ghi-dc.org/sub_image.cfm?image_id=3180
(3) German Law Journal, Volume 11, No. 1, http://www.germanlawjournal.com/pdfs/FullIssues/PDF_Vol_11_No_01_compete%20issue.pdf
(4) Lijphart, Ch. 11
As discussed in class, the more specific that a constitution is, the more difficult it is to amend. The German Basic Law is very specific, even laying out Articles for political parties (Article 21) [1]. This may mean that it is more difficult to amend the constitution, as it is already very detailed and covers broad ground. However, as stated in the leader post, it has been amended 50 times since inception.
ReplyDeleteAn interesting aspect of the amendment process of the German Basic Law is that amendments can only be proposed to existing laws or text. This is different to the United States amendment process, in which completely new legislation can be introduced. In Germany, amendments can only be created to supplement existing articles in the Basic Law (Article 79) [1]. This limits the scope that amendments can cover because they cannot introduce new ideas to the Basic Law. These new ideas can, however, be made into law. This choice to make new ideas unavailable to make into amendments may be due to the rocky history surrounding the writing of the German Basic Law. The authors of the Basic Law wanted to avoid a loophole that would allow another Hitler-esque dictator to rise to power. Because Hitler was able to rise to power based in a hole in an amendment, the writers were probably wary of allowing the Basic Law to be amended easily or for new ideas to be added to the existing constitutional skeleton.
(1) German Basic Law
https://www.constituteproject.org/constitution/German_Federal_Republic_2012
Taylor Gunderson
ReplyDeleteAs has been mentioned by my other group members, the German Federal Constitutional Court does indeed have the power to actively exercise judicial review. However, although the whole institution has jurisdiction over constitutional disputes, in practice, only some of the judges truly rule on them. During the establishment of the new court, there was disagreement about how it should be set up. One proposed strategy was to create “two separate courts, one for the review of the constitutionality of legislation and the other for the decision of political disputes among branches and levels of government” (1). The final decision created one Court with two panels: one to rule on constitutional issues and the other to rule on political issues (1). The Federal Constitutional Court Act of 1951 declared in Article 14 (1) that the First Panel of the Federal Constitutional Court would primarily review issues of constitutional complaints and disputes over legal provisions claimed to be incompatible with basic rights (2). Although the Second Panel has the power to review constitutional issues as well, they mainly deal with “political issues.”
As Lijphart mentions throughout chapter 12 of his book, this Federal Constitutional Court has become extremely powerful and recognized, second only to the United States Supreme Court (3). Yet, there is one major difference between these two courts. The German Constitutional Court is based off a centralized system of judicial review which was designed by Hans Kelsen; this system does not allow ordinary courts to decide constitutional issues but to instead submit them to the Constitutional Court (3). This is unlike the US decentralized system where ordinary courts can also decide issues regarding constitutionality. Germany adopted this less popular system for a variety of reasons, one of them being “the lack of any tradition of stare decisis” (4). Because the German judiciary is a large and web like system with a variety of hierarchies, it would have been difficult to implement the American decentralized system. Despite this, the German Federal Constitutional Court has been extremely successful and can even be considered the strongest European Court (3).
1) Grote, Rainer. "The Federal Republic of Germany." Max Planck Institute for Comparative Law and Public International Law
2) The Federal Constitutional Court Act, 1951
3) Lijphart, Chapter 12
4) Kommers, Donald. "An Introduction to the Federal Constitutional Court" http://www.germanlawjournal.com/article.php?id=19.
Keiko Diaz-Pezua
ReplyDeleteAs had been determined in previous posts, German Basic Law follows a consensus model, which according to Lijphart, means that the constitution is rigid and protected by judicial review. (1) This is supported by Article 79 which states that “the Basic law can be amended only by a law which expressly amends or supplements the text thereof.” (2) Meaning that no new law can be added, only existing text can be amended. It is restricted to “clarifying interpretation.” (2) It is also supported by the fact that two-thirds of both the Bundestag and the Bundesrat must agree for there to be any amendments made. According to Lijphart, the German Basic Law has one of the highest value on the index of constitutional rigidity. (1)
This is all in accordance with how the writers imagined the constitutional court would function. As mentioned in the leader post, it was written and ratified by a Parliamentary Council. The amendment process, as the writing process, is covenantal. With a majority in both the Bundestag and the Bundesrat needed for any amendment to pass.
A special constitutional court is entrusted judicial review, which allows for active judicial review. The Constitutional Court has the power to interpret and those interpretations are applied as law. According to Lijphart, this is called a centralized system of judicial review. These attributes are what make German constitutional court the most powerful and more consensual high courts. (1)
1) Lijphart, Chapter 12
2) German Basic Law;http://www.fordham.edu/halsall/mod/CONST-DE.asp