75 years of the Federal Constitutional Court | Corrective for the rule of law

In its first meeting on October 2, 1951, the Second Senate of the new court discussed the South Baden government's objection to the reorganization in southwest Germany. Photo: dpa Exactly 75 years ago, on September 28, 1951, the Federal Constitutional Court (BVerfG) was ceremoniously opened in the presence of Federal Chancellor Konrad Adenauer and Federal President Theodor Heuss. The judges had already started their work three weeks earlier and the legal basis had been created in April of that year.

The 75th birthday will be celebrated in style this Monday: a ceremony will take place at the court's headquarters in Karlsruhe, and Federal President Frank-Walter Steinmeier will honor it in a speech in front of 1,000 invited guests. Newspapers were already full of praise. It is said that the court protects freedom, democracy and the rule of law. It should therefore be remembered here that the establishment of a constitutional court is not a given in democracies. The French Constitutional Court, the Conseil Constitutionnel, was only given broad review powers comparable to the Federal Constitutional Court in 2010. At the beginning of its establishment, it was only responsible for delimiting the areas of competence of the executive and legislative branches. It was not his job to examine whether fundamental rights were violated in specific cases.

In Great Britain, there was no independent constitutional court at all until the Supreme Court was introduced in 2009. The highest judicial authority lay with the Law Lords (the Appellate Committee of the House of Lords). And today's Supreme Court cannot, in principle, overturn a law passed by Parliament because it is unconstitutional. In the Netherlands, Article 120 of the country's constitution states: "The judge does not judge the constitutionality of laws and contracts." So there is no constitutional court with the authority to reject laws.

Even in Germany, judicial competence was by no means undisputed before 1951. In the Weimar Republic, the State Court was initially only supposed to check whether the laws had been passed through the correct procedure. However, the court soon also claimed the right to examine the content. Left-wing jurists in particular opposed this, while the right vehemently advocated for it. The left invoked parliamentary sovereignty, the right invoked the primacy of the constitution. In the background, both sides were aware that the judiciary was traditionally rather conservative.

Law is structurally conservative, regardless of the political beliefs of the judges.

The position of the USA as an occupying power in the West with the tradition of the Supreme Court was of great importance for the establishment of constitutional jurisdiction. German and Austrian traditions were also taken into account in the court's tasks. But even after the BVerfG was founded, its role was not without controversy. FDP Justice Minister Thomas Dehler criticized the role that the BVerfG claimed for itself very early on and remarked: “The Federal Constitutional Court is a court and nothing but a court. The talk of a highest constitutional body finds no support either in the Basic Law or in the Federal Constitutional Court Act.

But the BVerfG prevailed and not only claimed extensive control and rejection powers, but in some cases dictated to the legislature more or less directly what a regulation should look like. An outstanding example of this is the second decision on abortion from 1993 (BVerfGE 88, 203), in which the judges specified the current legal situation in detail.

This led primarily to criticism from the left - the BVerfG should practice self-restraint. The conflict between right and left, between the rule of law and democracy, remained virulent, but is certainly ambivalent. The new illiberal democracies (Hungary under Viktor Orbán, Poland under the PiS) show that there is no democracy without liberal freedoms. The BVerfG already emphasized this in the 1950s: freedom of expression, according to the court in the so-called Lüth judgment of 1958, is constitutive of democracy.

Conversely, the rule of law limits parliament's freedom of decision and thus democracy. Law is structurally conservative, regardless of the political beliefs of the judges. According to Hannah Arendt, constitutional law in particular is “the rule of the dead over the living,” because what was considered right at the time when it was passed is always considered law – but what may be wrong or outdated today. This leads to ambivalence again: the Federal Constitutional Court acts as a brake on emancipatory politics just as it does on a reactionary turnaround.

Here are two examples: In 1977, the social-liberal coalition abolished the examination of conscience for conscientious objectors. The BVerfG considered this to be incompatible with the constitution (BVerfGE 69, 1), which doesn't say a word about it. The court explained that community service must be an annoying alternative to military service because the functioning of the Bundeswehr is protected by the Basic Law. But that isn't there anywhere either. That is why civilian service had to be longer than military service - and that was a scandal, because the Basic Law expressly prohibits longer durations (Art. 12a II GG).

On the other hand, the BVerfG has curbed the privatization euphoria of neoliberal forces: the privatization of the post office, it decided in 2003, would lead to the state's responsibility to provide guarantees. Privatization means the state's withdrawal from the direct provision of services, but does not entitle it to withdraw from its responsibility for basic services. Remote areas would also have to continue to be supplied with post and telephone (BVerfGE 108, 370). Limits were set here on the “free” market.

Constitutional courts do not work in a vacuum - the judges are children of their time and are always infected by the zeitgeist. In 1957, the court ruled that the criminalization of male homosexuality (Section 175 StGB) was compatible with the constitution because it violated the moral law (BVerfGE 6, 389). In contrast, the registration of same-sex civil partnerships was declared by the BVerfG in 2002 to be compatible with the Basic Law and the special protection of marriage.

In 2021, Karlsruhe found a right to climate protection in the constitution, which was somewhat pompously referred to as an “intertemporal right to freedom”. The legislature was obliged to pursue effective climate protection.

In the following years, the Federal Constitutional Court strengthened the rights of homosexual couples in several rulings. There were no longer any lawsuits against “marriage for all,” which the Bundestag passed in 2017. The wording of the Basic Law has not changed in this regard since 1957.

Judges go into deliberations with a pre-understanding that is produced by the intellectual currents of the time and must be incorporated into the judgments. Preunderstanding is by no means to be equated with a prejudice, but rather it refers to evaluation and perception schemes, interpretation patterns that are acquired in the course of socialization and correspond to social perception.

Occasionally the court also defied the dead and made extremely lively, forward-looking judgments. The judges were, as it were, ahead of the zeitgeist. First of all, there is the judgment on informational self-determination from 1983, with which the fundamental right to data protection saw the light of day. This is not stated in the constitution, but the court recognized the potential of electronic data processing, which was still in its infancy, and tried to contain it legally (BVerfGE 65, 1). But the state's data collection frenzy was only slowed down, not stopped, and the law is not enough for the tech giants today. New rules are needed.

In 2021, the BVerfG found a right to climate protection in the constitution, which was somewhat pompously referred to as an “intertemporal right to freedom” (BVerfGE 157, 30) - in any case, the legislature was obliged to pursue effective climate protection.

The new challenge for the federal and especially for the state constitutional courts is discussed under the heading of resilience. Federal constitutional judges are elected with a two-thirds majority, half by the Bundestag and half by the Bundesrat. A cross-party agreement is always required to fill the court again if a judge leaves after twelve years. The election is regulated differently in the federal states - but in many the two-thirds rule also applies.

What now, one wonders, if the AfD, as in Saxony-Anhalt, has more than 33 percent of the representatives. For the federal government, it was decided that the right to vote would be transferred from one body (Bundestag) to the other (Federal Council) if the body actually entitled to vote does not achieve a two-thirds majority within three months (Section 7a V BVerfGG).

The constitution has been changed in Saxony-Anhalt. If there is no two-thirds majority in the state parliament, the state constitutional court proposes candidates who can be elected in the state parliament with an absolute majority (Art. 74 III LVerf S-A), i.e. with half of the votes. If the AfD and BSW have a majority, it may happen that they do not elect a person recommended by the court. In some federal states there are already judges who were nominated by the AfD. For their election, the other parties horse-traded with the AfD - not a good sign for the resilience of democracy and the rule of law.

The »nd.Genossenschaft« belongs to its readers and authors. They are the ones who make our journalism accessible to everyone through their contribution: We are not backed by a media company, not a large advertising customer or even a billionaire.

Thanks to the support of our community we can:

→ report independently and critically → shine a light on topics that otherwise remain in the shadows → give space to voices that are often silenced → counter disinformation with facts → strengthen and deepen left-wing perspectives

With “Voluntarily pay” you contribute to the financing of our newspaper in solidarity. So that nd remains.