|
|
©Copyright: Ulrich R. Haltern, 1996.
A. The Conventional Story: The Court As an Unpolitical Control Agent
("In General, the Patient is Healthy")
B. The Revised Story: The Court As a Political Agent of Minorities
("The Patient is Both, Ill and Healthy -- It Depends")
C. My Story: The Court As a Political Control Agent
("The Patient Is Ill -- Let's Apply Holistic Medicine")
A. The Conventional Story: Law, Politics, and Immaculate Truth
B. The Revised Story: Accountability, Representation, and Seizure of Power
2. Accountability and Representation
3. Parliament's Share and Ambiguity ofAccountability: Criticism
A. The Conventional Story: Judicial Self-Restraint
B. The Revised Story: Competences, Representation, Elections and Methods
The mere fact that the title mentions "constitutional review" is probably more than sufficient to deter most of potential American readers from browsing beyond this title page, and if they do they will approach this undertaking with a sense of repetitiveness, déjà-vu, and -- to put it bluntly -- unspeakable boredom. Students of constitutional law in the United States have been bombarded with essays, articles, books, workshop talks, panel discussions, and symposiums on the question of judicial review. Especially during the last thirty years, the counter-majoritarian difficulty has emerged with vigor as the leading paradigm of American constitutional theory.[1] Although not necessarily all that glisters is gold, many learned and sophisticated scholars have spoken out and written learned and sophis ticated contributions -- how can I hope to add new insight to such a debate?
I can't. Therefore, I'm not writing about judicial review in the United States or about the proper method of interpretation for the Supreme Court. My subject, instead, is constitutional review in Germany. The scholarly environment in relation to research on the German Federal Constitutional Court (Bundesverfassungsgericht) is completely different from the American one, and it may surprise Americans to hear that literature on judicial review and the proper place of the Bundesverfassungsgericht in Germany's political process is scant, at least in comparison to the wealth of the discussion in the United States.[2] (In the course of the paper we will come across possible reasons for this phenomenon, such as the culture of the legal discourse in Germany. It may not be too early, however, to mention that unlike the US Constitution which does not expressly confer the power to repeal a law to the Supreme Court[3], the German Constitution [Basic Law -- Grundgesetz] spells out the Bundesverfassungsgericht's competence in detail. Therefore, instead of questioning and requestioning this power, German scholarship could rely on the black letter of the Grundgesetz and confine its scope to the framework set by it.) Therefore, it seems there is a huge lacuna in scope and depth of German legal scholarship, which in turn opens a market for someone who knows the German legal system and is under the impression of the overwhelming eloquence of the American debate (like me). However, I have reasons to deal with German constitutional review other than publishing articles in this field, furthering my own career and hoping for a tenure in constitutional law.
These reasons are partly almost too familiar for repetition here, and partly very recent and of an unmistakably pressing nature. Familiar is the saga of the deteriorating political process and the lackof political accountability; less familiar and a fairly recent phenomenon is the rising hostility of the citizenry and the political class vis-à-vis decisions from Karlsruhe, the Court's seat. Both aspects will receive more attention infra I. I will view them through different lenses, thereby often departing from a strictly legal discourse, and assume a variety of vantage points: history, political theory, legal methodology, and functional aspects. The variety of perspectives will necessarily bring about some disunity; however, this will be compensated for through the emergence of one uniting paradigm: the amazing distrust vis-à-vis the German people as a community. It is this paradigm that justifies the words "progressivism and populism" in the title.[4] I have decided to tell the story (or should I say: stories) of constitutional review in Germany as a medical history (symptoms -- ad hoc diagnosis -- in-depth diagnosis [maybe taking into account laboratory findings] -- therapy), which involves a couple of advantages. First, using "illness" as my leading metaphor attracts attention within the sometimes sterile legal academic profession, and thus may help me overcome the initial bored rejection. Second, it provides me with a useful structure that makes it easier for me to give the reader a linear account, and that makes it easier for the reader to follow it. And third, I am making it abundantly clear from the outset that in my opinion, there is something rotten in the State of Denmark when it comes to constitutional review in Germany. The diagnosis and therapy stages of the medical history will feature three different conflicting stories -- the conventional view, a revised view, and my view.
For most of the time, detectable symptoms have been rather subtle; flares of fever attacks that have significantly impaired the proper functioning of the system have occurred very rarely, attacks that might have paralyzed it have not happened at all. This suggests that the illness we are dealing with is one with a long incubation period.
Whereas in the Bundesverfassungsgericht's first years, one volume of its collected published decisions covered a period of a year or more, there are now four to five volumes a year. The number of decisions handed down has enormously increased. In addition, decisions have become longer and far more detailed than they used to be. The Court explicitly points out to the legislator where the boundaries of constitutionality are -- and thus prescribes a legislatory program. This has, of course, effects on the political process which I have already hinted at. In this regard, Germany is no exception. The Bundesverfassungsgericht acts like a paris inter paribus. It is fully aware of its powers, in general open-heartedly welcomes them[5], and barely conceals its overwhelming influence on nearly all questions of political life. The political process, in turn, deliberately or unconsciously, voluntarily or forcedly, adapts to the shifting balance of power by orienting itself towards decisions of the Court that have already been handed down or that might, in the future, be handed down: the political process is juridified, appears to be decisively narrowed and even heteronomous, and -- because the legal process is in general much less flexible than the political one -- tends to ossify.[6] In addition, it is remarkable how similar and constantly repetitive the process of public discussion and deliberation of Bundesverfassungsgericht decisions is. After each controversial decision[7] there is a short public uproar, the subject is in the headlines for a couple of days. Newspaper comments focus on practical political consequences of the decision in question, and rarely is the Court's legitimate right to pronounce on the problem under attack (if it is, most comments disqualify themselves through emphatic style and superficial level of analysis). Some scholarly opinions are published in the main journals a few weeks afterwards, mostly discussing (technical) details of the decision, almost never dealing with the Court's legitimacy to decide upon this matter, and always couched into technical-legal language. After this short period of attention, the decision, which has the status of a law (section 31 of the Federal Constitutional Court Act [Bundesverfassungsgerichtsgesetz][8]), is accepted as being an integral (and legitimate) part of the German legal system. I am not aware of any case in which the Bundestag together with the Bundesrat have amended the Grundgesetz as a response to a decision. This quasi-passivity, both from the citizenry, the political system, and the legal academia, testifies for a sublime conflict that Germany has not yet come to terms with. Simultaneously, passivity creates an environment in which the illness has room to progress and potentially reach a state that is more and more threatening.
This seems to become different, however: there has recently been a noticeable change of reactions to the Bundesverfassungsgericht's decisions (and this is what I perceive as hitherto less familiar reasons for the urgent need for a comprehensive analysis of the Court's position and power). Both the political class and the public have voiced sharper critique, even outright hostility vis-à-vis decisions from Karlsruhe. In answer to the so-called Crucifix decision[9] hundreds of thousands of protest letters have flooded the Court (far more than have been sent to the Court before altogether[10]), angry letters to the editor have been published by all newspapers, tens of thousands of people (mainly in Bavaria) have chosen to participate in public protest marches. Politicians went so far as to call for resistance against the decision and publicly announced they would not comply with their duty to implement the decision. This is a decisive change of attitude. Only some years ago, studies proved that of all authorities installed by the Grundgesetz (including Bundestag and Bundesrat), the Bundesverfassungsgericht enjoyed the highest reputation among the people.[11] A malicious description would have depicted the Court as the new authority Germany looks up to -- some sort of Ersatzkaiser. This, of course, would have been unsettling in itself, too: a political center of decisionmaking coming along in the disguise of the least dangerous branch, camouflaging its elitist, non-accountable value decisions with a layer of seemingly objective legal expert language. Is the public upheaval, then, a row that clears the air? Unfortunately not -- the public and passionate statement by politicians and state officials to disregard decisions of one of the highest constitutional organs, thereby (rhetorically) indulging in intentionally breaking the constitution, can hardly count as a deliberate solution of an intricate legitimation crisis of the Bundesverfassungsgericht. On the contrary: the angry exchange of accusations and the heat of the moment cloud the real underlying issues. A discourse loaded to the brim with morality, values, tradition, religion, beliefs, ideology, and questions of individual and collective identity is carried into the legal and political systems, sparking off conflict, destroying (at least procedural) consensus, and therefore undermining the foundations of the Rechtsstaat. However, the positive flipside is that the crucifix incident demonstrates in rare clarity the urgent need for a medical check-up of the German system of constitutional review.
These symptoms should be obvious to anyone with an attentive eye. However, as Humberto Maturana and Francisco Varela teach us, nothing is obvious, and everything depends on the observer. And from Stanley Fish we can learn that nothing is as it seems, and that, of course, my account of symptoms is definitely debatable (and, in fact, strongly contested). This will become plain through the different ways of how a diagnosis is made. This section traces three different narratives -- a conventional, a revised, and my own story -- and is best conceived of as an introduction to the different vantage points from which the problem of constitutional review in Germany is observed. Therefore, I call it a "first ad hoc diagnosis". In contrast to merely locating observers, the subsequent part (III.) constitutes a more profound journey into each of these perspectives; therefore, I call it "in-depth diagnosis", and if the reader wants she can conceive of it as the second or follow-up diagnosis performed by the doctor after getting back the laboratory results. It should be noted that the first two stories are composite versions culled from different exponents; I have also spelled out what I believe follows logically from the substance of the argument, even if the authors themselves may shy away from these implications.
I will call the narrative that follows "conventional" not because it is particularly well rooted in tradition[12] or because it is the mother of all other stories, but rather for two reasons: (1) It is the story that has enjoyed its high point, and at the time almost a status of untouchability, as part of the legal narrative of the young Federal Republic of (West) Germany; and (2) it is still, until today, the story that is told to law students at law schools and as such, simply in terms of time, the narrative about democracy you hear first. It is the narrative about legal discourse being totally unimpressed by political discourse, and the story-tellers are those members of the legal professoriat who are either untouched by or are opposing the increasing interdisciplinarity of the legal academy. Jack Balkin views professorial interdisciplinarity as part of the fragmentation of the 'public sphere' of legal discourse, and distinguishes, nota bene for America, between an increasingly conservative body of judges on the one hand, and a liberal academy. [13] This, it should be noted, is not true for Germany. "Isolationism" within the academia, resistance against opening up legal discourse to contextual and interdisciplinary research, is a widely spread phenomenon that neither respects borders between judiciary and academia nor between liberal and conservative. Indeed, we still find calls for a (legal) "science that operates within the framework of strictly rational, intersubjectively mediatable and scrutinisable criteria, therefore within the framework of objective criteria and standards"; and in addition, this "science" should be vigilant to "preserve its integrity vis-à-vis the political process".[14] How come, at a time that the critical legal studies movement has already passed its peak, that such claims are still made? We can root the starting point -- the law is the law and as such unencumbered by the dirty business of politics -- within what has been called the "myth of immaculate truth"[15]: There is democratic conflict and bargaining, and it is (as pluralism or neo-pluralism) honored, but there is also truth as something existing outside these instruments. The law, in this reading, is a specific part of knowledge, in itself innocent, and detectable. The chain of argument now is easy to discern: constitutional review is performed solely in the service of the detection of the (legal) truth which is determined by the constitution and its ultimately authoritative interpreter, the Bundesverfassungsgericht. It has been the will of the founders (who in remarkably sexist language are still called the "fathers of the Grundgesetz" although amongst them was in fact one woman) to check the political process by the means of the law -- how can that be unhealthy? This perspective, in short, views the Court as an unpolitical control agent -- and as such as the crown of the constitutional state:
The Constitutional Court is the guardian of the Constitution and of all legal ways [Rechtswege], is the shepherd of all companions in law who form the statal polity. The institution of constitutional review is the protection of the Constitution's preeminence; it is the center of the nation-state of the present because it realizes the main and basic values humans have committed to: human dignity, freedom, equality, commonweal, the rule of law, preeminence of the Constitution -- and freedom, which is only secured as a deed of law. Constitutional review is ... 'the most wonderful thing that has ever arisen from human minds'.[16]
The myth of immaculate truth is mirrored in the semantical nature of German legal discourse. Whereas in the United States legal culture, for instance, scholars have no inhibitions to make unmistakably plain that what they put on paper is their personal opinion about a legal problem, the first person singular in legal writing is practically taboo in Germany. American scholars are proud to show where they stand politically; German legal culture, in contrast, denies that political convictions are involved. Personal views or political balancing is most often passed off as "purely legal" problems that can be treated like mathematics.[17] In contrast to Supreme Court decisions, decisions by the Bundesverfassungsgericht are cited without any reference to the year in which they were handed down, thus making it difficult to see them in their historical context and attributing an aura of "permanent present" (Eric Hobsbawm) and general validity to them. It is interesting to compare this formalism to that we can trace back to Christopher Columbus Langdell: what we discover is a striking resemblance of semantical and rhetorical tools, in the service of the same purpose: a law that is unaffected by analyzing subjects but rather constitutes an objective, rational science. Let us listen to a recent account of Langdellian formalism that is equally true for wide parts of German formalism:
Langdell, the propounder of the law, never let the reader know that it was he, rather than the "law", who created the discourse and conducted the analysis. ... Legal conceptualists who followed Langdell's orthodoxy assumed either that law was a transcendental object possessing universal properties unaffected by analyzing subjects, or that law was itself a transcendental subject capable of rendering authoritative pronouncements. ... Langdellian rhetoric portrayed law as either a transcendental object or transcendental subject, but in either case the role of the analyzing subject was eclipsed. ... For conceptualists, the autonomy of law must be preserved in order to prevent external moral and political concerns from corrupting the universal principles, rules, and doctrines of law. Conceptualists believe that law's analysts can distinguish between questions of fact and value, the "is" and the "ought", law and politics. They attempt to identify legal norms within the self-contained logical systems of law and legal reasoning. ... In Langdell's world, law was a science with a rational order that could be discovered by an autonomous subject who used the correct legal methodology. This "depersonalization and deprivileging of the individual subject" remains a hallmark of both the conceptual and normative styles of legal modernism.[18]
It is this layer of objectivity (semantically often conveyed through the use of passive form) that constantly reinforces an alleged clear-cut cleavage between law and politics, and even more, the superiority of law to politics.[19] If this is the unquestioned image of the law, then we should not be surprised that politicians defer to (even future) Bundesverfassungsgericht decisions in anticipating obedience. Moreover, the layer of objectivity surrounding the law (in contrast to politics) adds a certain trickiness to the German version of the counter-majoritarian difficulty. If the law is the law and must not be confused with politics, then we have a reasonable separation of functions -- the counter-majoritarian difficulty is, in effect, harder to detect, and therefore of a more subversive character than in countries acknowledging the porousness of the boundaries (if there are boundaries at all!) between law and politics.[20]
It will have transpired meanwhile that I do not agree with this view. It would lead too far in the framework of this paper to do justice to the variety of arguments raised against the innocence of law by, inter alia, the legal realism and the critical legal studies movements, by feminist legal theory and critical race theory, by different shades of postmodernism, and, less rigorously, by the law in context movement -- but the American reader gets the idea of what I'm after. However, James March and Johan Olsen rightly point to the (often under-illuminated) fact that the myth of immaculate truth, of which the myth of 'unencumbered law' is a part, serves the democratic polity in two important ways: It civilizes the debate and reduces the potential for conflict, violence, and unresolvable confrontation; furthermore, it provides a counterbalance to the unequal distribution of monetary and physical resources because, in this reading, it purports to serve Truth, not Mammon or Power.[21]
The second -- what I will call "revised' -- reading of the symptoms abandons the myth of immaculate truth. Under the pressure of overwhelming evidence, it is acknowledged that the Bundesverfassungsgericht is in fact an important player in the political arena. This has far-reaching implications. First, it is inconceivable now to content oneself with a purely legal analysis that does not take into consideration repercussions of Bundesverfassungsgericht decisions on the political system. In other words: starting from the legal standpoint, it becomes inevitable to broaden one's view for the impact of powerful constitutional review on the equilibrium of powers, the system of checks and balances, and the concept of representational and accountable governance on the one hand, and on concrete political issues on the other hand. Accepting the Court as a political player means therefore, for instance, to become sensitive for the decreasing decisionmaking power of Parliament, for the ossification of the political process, or for the danger of unaccountable and unrepresentational imposition of values; at the same time, the analytical focus may shift from the purely legal examination of the content of Article 2 (2) in relation to Article 2 (1) Grundgesetz to a more politically oriented examination of the implications for women's status in society if the liberalizing new law on abortion is stroke down. Second, it is inconceivable now to content oneself with the theory of an innocent method of legal interpretation. In other words: starting from the political standpoint and the awareness of the political issues at stake, it has to be acknowledged that political considerations figure strongly in the Justices' deliberations, even if they are concealed under a cloud of alleged textual-legal objectivism. For example, it may well be that the all-decisive argument we can read in the decision declaring the deployment of German armed forces 'out of area' constitutional is that the NATO as well as the UNO are covered by the content of Article 24 Grundgesetz. However, we must then keep in mind that what ultimately convinced the Justices was not textualism (or formalism) but the thought that a united Germany should assert its international responsibility (and power) other than through only economic means. [22]
Compared to the conventional story, this approach is significant progress. However, it covers only half the distance, which, in the end, may be human. Although the method and level of analysis points into the right direction, its realization appears to be fragmented and hence flawed. The key to this deficiency is to take a good look at the actors involved in performing this diagnosis. Never, it seems to me, has it ever happened that in a conflict that has been decided by the Bundesverfassungsgericht, the winning party has questioned the Court's legitimacy to pronounce itself on the issue. Why should it? It has just succeeded in a much more convincing way than any political victory could ever aspire to. The stamp of approval from the Bundesverfassungsgericht still conveys the aura of objectivity, of immaculate truth, of constitutional virtue. The victor's opinion about the issue has proven to be in line with the spirit of the highest legal instrument of the country (which, of course, is that of tolerance, protection of individual and minority rights, predictability, security, legality, deliberative justice, consensus, and virtue), whereas the defeated party's opinions have come out as unconstitutional, that is contravening all these values. Is there a higher level of legitimacy conceivable? In addition, political decisions are usually achieved through compromise and are easily revocable (namely through a mere change of the simple majority). Decisions of the Bundesverfassungsgericht, however, are much more stable. The political system needs a qualified majority to amend the Constitution in order to 'overrule' the Bundesverfassungsgericht. In almost all cases, this is inconceivable. (It is already very difficult to scramble together a cross-partyline majority for liberalizing abortion laws -- it is unthinkable to get together a qualified majority in the Bundestag and the Bundestag.)[23] And even then, there is no guaranty that this is it: Germany prouds itself for the peculiar construction of "unconstitutional constitutional law'. Even constitutional amendments may be unconstitutional when they contravene "higher' constitutional law, such as the core principles of the Grundgesetz. This is on the one hand laid down in the Grundgesetz itself:
Article 79
...
(3) Amendments of this Basic Law affecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20 shall be inadmissible.
In Articles 1 and 20 Grundgesetz, the following principles are rooted: rule of law, democracy, federalism, social state, and respect for human dignity.
On the other hand, some scholars aim at broadening this concept of 'unconstitutional constitutional law' to areas outside Articles 79, 20 and 1[24]. The Court has taken up this approach in an early 1953 decision when it was still under the influence of the rigid rejection of "value-free positivism".[25] Whether today it would follow up on this decision is an open question (I am an optimistic person and therefore skeptical).
In the light of these circumstances -- enhanced legitimacy and quasi-irreversibility of one's position -- who would doubt the Court's competence after victory? On the contrary, the logic of things demands from the succeeding party to reinforce the Bundesverfassungsgericht's authority because this means to simultaneously render one's own position unassailable. Therefore, it will always be the defeated party that calls into question the Court's legitimacy. This, of course, is not surprising in itself. But let us follow up on it: What cases do usually come in front of the Court that give rise to public attention? Those that will repeal laws made by the majority, either because the parliamentary minority or (in the framework of constitutional complaints -- Verfassungsbeschwerde -- which grants individuals access to the Court in special circumstances) an individual or a group of individual feels the law violates fundamental rights. The cases that will gain public awareness will always be those in which the minority prevails over the majority because it is only here where the counter-majoritarian difficulty becomes relevant at all. Thus, the Court's authority will be doubted only when it decides in favor of the minority -- and those who raise the doubts are the majority! This leads to the conclusion that this diagnosis necessarily perceives the Bundesverfassungsgericht as a political agent of minorities. It is this perception that instills a sense of injustice into the feelings of the defeated majority. Common sense tells us that in a healthy democracy there should be principal-agent relationship between the people as a whole (principal) and the Court (agent). Then, it cannot be right to be obliged to defer to a Court that assumes its principal is not the people as such but a minority!
It remains to be seen whether the depiction of the Court's function as less of a control agent but rather as representing minorities against the majority is an accurate one. However, we can further follow up on this approach. First, let us take into account that according to this diagnosis, doubts as to the Court's legitimate decisionmaking power are raised by groups defined through the substantive issue at stake (e.g. abortion or religion). When the Court strikes down liberal abortion laws, it is "left" to question its legitimacy, and it is "right" to underline its authority explicitly conferred through the Constitution. This, however, clouds an understanding of expansive constitutional review as (in tendency) progressive as opposed to populist -- a distinction that runs at right angles to the left-right distinction.[26] Furthermore, the (defeated) majorities change -- today it is the liberal majority that is defeated in the abortion battle, tomorrow it is the conservative majority that is defeated in the Crucifix decision. Therefore, it may be liberals who try to undermine the Court's legitimacy one day (abortion) and to vindicate it the next day (Crucifix), whereas it is the other way round with conservatives.[27] This obvious incoherence significantly weakens the seriousness and credibility of the revised story's diagnosis.[28]
The metaphor of 'holistic medicine' for the approach I am going to choose is designed to highlight the following: (1) 'Medicine' illuminates from the beginning that there is something to cure. I will not join in the applause for constitutional review as 'the most wonderful thing that has ever arisen from human minds' but intend to point out weaknesses of both conceptual and practical nature; (2) 'holistic' hints at my intention to avoid two mistakes committed by the other stories: reductionism and incoherence. (a) I will recognize the Court as a political player, thus necessarily abandoning the reductionist path of purely legal analysis. Instead, my goal is the bigger picture, which definitionally entails the necessity to take into account a variety of different perspectives. To be sure, the legal one plays, of course, an important role, but it is not the only one. As a picture comes together through a combination of different colors, and as holistic medicine composes its diagnosis and therapy out of an analysis of many different body parts (that at first glance seem to have nothing to do with the disease at all), uses a multiplicity of medical methods, and pays additional attention to factors such as psychology, I will try and compose my version of what constitutional review is about out of more than one story. (b) By avoiding a critique of the Bundesverfassungsgericht that is informed by the substantial issues at stake in each case, I hope to avoid at the same time the deficiencies that go hand in hand with this approach: the distinction between left and right which is misleading and useless in our context; screaming incoherencies within the line of argument of each side (i.e. right or left), always depending on the substance of the case before the Court; the impression of arbitrary and makeshift criticism that seems to be only a part of a political strategy to further a party's political goals -- a service function that, in general, makes the whole attack on the Court appear dishonest and mendacious.
The first narrative I will plunge into is the historical one. As Lawrence Lessig has recently analyzed, readings change over time, due to a variety of factors.[29] How can we aspire to give an adequate account of today's understanding of the relevant provisions in the Grundgesetz if we do not consider changes in the societal environment (such as economic realities or value shifts [what Lessig describes as "background discourses'])? How can we hope for coming even close to the heart of constitutional review if we don't account for the intentions of those who have constructed the Bundesverfassungsgericht? Moreover, how can we aim at looking beyond the letters of the Grundgesetz if we don't know how the relevant players, such as Justices at the Bundesverfassungsgericht, or members of the legal academia, have filled the largely empty frames of open-textuality? Loyal to the progressivism/ populism distinction, my main focus will be on aspects such as possible barriers to political participation of energized citizens, the prevailing attitude as to elite government, trust and respect for the political energy of citizens, definitions of democratic culture etc. Also, I will take a look at the actual players especially during the shaping period of Germany's formative years.
What would someone expect from this historical story, even before she hunches over the laboratory findings? From a story that features many jurists deeply involved in the Nazi regime during the period between 1933-1945, who re-emerge after the war to play (partly even leading) roles in the West German judiciary and legal academia; a story which features a German Volk that voted for extremist parties during the Weimar Republic and for Hitler? She would, I guess, expect a narrative that recounts deeply rooted distrust in public political participation, that therefore relates a very limited political role for the citizenry (however energized it may be), that underscores (political democratic) education, and that tells about the idea (the myth?) of liberal neutrality. The connection between neutrality and education, she might further suspect, may create a tension that is not easily reconciled and has to be veiled through rhetoric means, such as, e.g., a rights discourse. Many of these expectations will be confirmed.
The second story will concentrate on functional issues and go back to the agency problem. Whose agent is the Bundesverfassungsgericht? The people's? Minorities'? Nobody's but rather some independent control agent? What are the Court's functions, then? This functional analysis cannot do without attentive consideration of the relevant provisions of the Grundgesetz. It has to come to terms with the necessary co-existence of the principle of (representational) democracy on the one hand, and the protection of fundamental rights on the other.
Unprejudiced, one would expect a discourse that attempts to reconcile both. In the light of the historical and the political theory discourse, however, one might become suspicious and suspect a secret inclination of the Court to take the latter function -- protection of fundamental rights -- more seriously than the policing of the democratic process.
The third story will be that of political theory, and it will often make use of elements and findings of the historical discourse, thereby sometimes blurring the border. I will confine myself mainly to the dichotomy of liberalism and communitarianism; and since this is a sophisticated and long debate, too, I will restrict my focus on the implications of the Bundesverfassungsgericht's notion of a pluralistic political process for its view of the possibility of societal self-regulation, of the role of the state, and, eventually, its own self-understanding.
After the catastrophic notion of the individual's destiny as serving the German Volk and its Führer during the Nazi regime ("You are nothing, your Volk is everything"), one would probably expect an extensive discourse about individualism, liberalism, private spheres, and the choice for every citizen to take part in the public sphere or remain in perfect privatism. However, taking into account that many of the founders were social-democrats or socialists, and that for them, ideologically, the notion of community figured high in their value ranking, one would also expect at least lipservice to socialization and communitarisation. As will transpire, both the historical and the political theory narrative interlock very well.
So far, our diagnosis has been informed by the symptoms alone. However, it often is hard to be accurate on the basis of external signs alone. The diagnosis may be incomplete (especially if the physician relies on what the patient -- or worse: her friends, her family, or other physicians who have previously treated her -- tells her) and would eventually leave the therapy deeply flawed and ineffective. We need further information then, information that provides us with the necessary background on the medical history, on previous diseases and treatments, on the general state of health etc. Before she starts a therapy, a physician would question the patient about all kinds of things; she would take sample tissue and send it to laboratories, and she would conduct further examinations. All this is designed to bring about a sober second thought, which will either confirm or refute the first impression. This part of my paper will perform the same function. I will try to dig up more relevant information and hope for a multifaceted outcome. In doing this, I will stick to the three different stories that are being told. Since each of them has a very different first impression, each will also have a different hunch on what is relevant for its own thesis. For instance, someone who narrates the story of a strict separation between law and politics will hardly be impressed by the ad hoc diagnosis of a deteriorating political process, will blame the reasons on the political system alone, and will refuse accept it as part of the problem at hand.
According to the conventional story, the Bundesverfassungsgericht -- as we have seen -- is an unpolitical control agent. The basis for this claim is the thesis of law as isolated from politics, thus innocent. Law (as knowledge) is to be discovered rather than created or negotiated. Expertise exists and plays an important, even crucial role. On a less abstract level, this means that there is a sphere of active creation on the one hand, assigned to the legislature (and, in more recent accounts, also in part to the executive branch), and a sphere of reactive control and conservation on the other hand, assigned to the judiciary. The system's health rests to a large degree on respect for this division of labor and function.
Not surprisingly, proponents of the conventional story are less innocent and naive than the law they have in mind. It is impossible to close one's eyes to the fact that constitutional law, and the Bundesverfassungsgericht as its authoritative interpreter, are at the center of political discussion. Not only do the Court's decisions have an immense impact on the political process: they shape political discussions through contextualizing democratic bargaining, they shape political decisions through imposing legislative programs, they shape political outcomes through striking down laws and replacing them through the Court's value judgments. What is more is that in turn, politics shapes the law. This influence goes well beyond the traditional notion of Parliament making the laws that courts have to obey (which, in the case of constitutional review, is not even true). It means that substantive political considerations figure in legal accounts and arguments; that Members of Parliament, members of the government and the Justices at the Bundesverfassungsgericht maintain close contacts and belong to the same power elite[30]; and that, in the long run, the Court will hardly be able to remain immune vis-à-vis strong political pressure, may it come from state institutions or from a citizenry that feels that the Court exerts undue political influence and critically starts to deprofessionalize the legal discourse in order to protect itself from legal-technocratic manipulation.
In answer to these -- from the conventional story's point of view -- unsettling tendencies, proponents of this narrative will conjure up two conceptions whose spell, one would think, has been broken for long. The first is a strict notion of separation of powers which is used to draw a clear line of distinction between legislative and judicial power.[31] The principle of separation of powers is still "the central starting-point"[32], or "a decisive criterion for delimiting competence"[33]; partly, the problem of judicial review is seen "as a problem of separation of powers"[34]. The second is the idea of law and politics as being strictly juxtaposed. Labels such as "dispute under the law" rather than "dispute about the law"[35] mirror to a great deal the Bundesverfassungsgericht's self-understanding.[36] Envoking these two conceptions serves the purpose of instilling some legitimacy into the story of immaculate truth (and law). While the first (separation of powers) is a largely uncontested concept in Germany and can therefore be counted on as common ground, the second (juxtaposition of law and politics) is a concept that with great consistency appears and reappears in the Bundesverfassungsgericht's and part of the legal academic's rhetoric, and therefore can claim some authority too.
Naturally, I won't let the opportunity go by of adding at least a few critical remarks (after all, I also have to instill my own story with some legitimacy). The complex institutional networking in the modern welfare state, the establishment of overwhelmingly influential political parties in Germany, and the growing general inability of Parliament to perform its function of controlling the government teach us that a Montesquieuian framework of thinking will hardly live up to contemporary challenges. Surely, we do not necessarily have to go as far as Professor Duncan Kennedy does in dissolving the separation of powers idea:
I will have nothing to say about the impact of "institutional competence" considerations on the motives for lawmaking I discuss. I assume that the only grounds for distinguishing between courts, legislatures and administrative agencies as lawmakers are (i) that the false consciousness of the public requires it or (ii) that the decision maker has a quite specific theory about how his or her particular institutional situation should modify his or her pursuit of political objectives.[37]
However, even in a revised form, the separation of powers doctrine would be used as a pre-positive, apriori principle -- and any analysis resting upon such a revision would have to focus on exceptions, exemptions, deviations, and anomalies[38] -- a largely fruitless undertaking that only diverts resources from more important analytical tasks (not to mention, of course, the doubtful normative content!).[39] Much more could be said against the juxtaposition of law and politics -- but again, neither would I want to repeat the rich American discussion nor could I do justice to it. However, I take the liberty of adding a point that should not be missing in a paper on the subject authored by a German. The notion of law as static-rational and politics as dynamic-irrational is not only doubtful but also involves huge inherent dangers. Carried to its extremes, it would amount to a depoliticised notion of law (being a superior realization of the common good) and to a demonised notion of politics (rooted in Carl Schmitt's friend/enemy scheme[40]).[41]
The revised story's weakness lies in the fact that it is informed by the substantial issues at stake in each conflict, and therefore it falls into the twilight zone of short-run criticism in the service of the (defeated) party's political goals. As we have seen, this does neither particularly strengthen its credibility nor its analytical depth. However, its virtue, on the other hand, is its awareness of the Court's striking role in the political process and, thus, the counter-majoritarian difficulty. Its indignation at the Bundesverfassungsgericht's power to invalidate laws made by directly elected representatives of the people is being channeled into basically two strands of criticism: (1) The Court has seized power. (2) The Court operates in a polity that should be able to root all power in the people and secure to tie decisions to the democratic basis; none of this is ensured in relation to the Court. Under (3) I will explain my own position as to these two aspects of the revised story's diagnosis.
The first argument spells out the following thesis: It is true, the Grundgesetz without any doubt envisages a strong constitutional court -- but not that strong. The conventional story argues that the Bundesverfassungsgericht has seized the opportunity with both hands and has interpreted the relevant provisions in a way that has decisively increased its own powers. The text of the Basic Law, however, does not necessitate such an interpretation. To be sure, it does not totally exclude it, either. But it is a constituent feature of constitutional law to be open-ended, sometimes ambiguous, and always in need of interpretation. The Bundesverfassungsgericht, according to the revised story, has chosen an interpretation that is one-sided, intrusive, and too often disrespects Parliament's (and hence the people's) will. In order to get a better hold of this argument, it will be inevitable to bore the reader with quite a bit of positive German constitutional law: (a) The Bundesverfassungsgericht's positive competences; (b) the German system of fundamental rights; and (c) what has the Court made out of these provisions (so-called value-oriented adjudication), i.e. the methodological tools used to seize power.
a) The Bundesverfassungsgericht's Competence
The Basic Law provides a detailed framework for what the Court can do and what not. The main relevant provisions are Articles 93 (1) and 100 (1). In addition, all of the Court's powers have been codified in section 13 and -- even more detailed -- in Chapter III of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). The Court's competence includes the prohibition of political parties (Parteiverbote), the solving of disputes between High Federal Organs (Organstreitverfahren) and Federal - State conflicts (Bund-Länder-Streitigkeit), concrete judicial review (Richtervorlage or konkrete Normenkontrolle), abstract judicial review (abstrakte Normenkontrolle), and -- most important -- constitutional complaints (Verfassungsbeschwerde).[42] In contrast to all other procedures in front of the Court, the Verfassungsbeschwerde gives access to private individuals who feel that their constitutional rights have been violated by any state action. It is by far the most popular proceeding -- until 1987, 56,812 proceedings before the Bundesverfassungsgericht out of a total of 71,132 had been constitutional complaints.[43]
b) The System of Fundamental Rights
Taking up the French and American (Bill of Rights) tradition, the Basic Law includes an extensive list of fundamental rights. The catalogue being at the very beginning of the Constitution, it becomes obvious they are meant as a safeguard against the derision of human freedom and dignity, as had happened during the national-socialist era. Among the fundamental rights included are the protection of human dignity (Article 1), the rights of liberty, life, and physical integrity (Article 2), equality before the law (Article 3), freedom of faith, of conscience, and of creed (Article 4), freedom of expression, of research and teaching (Article 5), the protection of marriage and family (Article 6), the protection of education (Article 7), freedom of assembly (Article 8) and of association (Article 9), privacy of letters (Article 10), freedom of movement (Article 11), occupational freedom (Article 12), inviolability of the home (Article 13), protection of property (Articles 14 and 15), and the guaranty of recourse to the court (Article 19 (4).
Another important feature is Article 79 (3) which I have already mentioned elsewhere, prohibiting the basic principles of the constitution -- such as the rule of law, democracy, the principle of the social state, federalism, and respect of human dignity -- from being altered, even by constitutional amendment. Rejecting the Weimar thesis about the unlimited substantial power to amend the constitution, Article 79 (3) is a consequence of the experience that it had been possible to abolish democracy by -- at least partly -- using democratic means.[44]
The same is true of Article 1 (1) which commits the state to not only respect but rather to protect human dignity. In answer to the disdain of human dignity between 1933 and 1945, this provision is unalterable due to Article 79 (3).
Another Weimar Republic discussion was put to an end by Article 1 (3): all human rights have legally binding force. In addition, Article 1 (3) extends legal effect of all fundamental rights to the legislature, again dismissing the majority opinion during the Kaiserreich and the Weimar Republic that the legislature was free to restrict fundamental rights as it pleased.[45] In this context, Article 19 (2) plays an important role, too: Legislative measures are limited by the prohibition to touch the essential content of a human right (Wesensgehaltgarantie).[46]
c) Value-Oriented Jurisprudence
Value-Orientation.
The Bundesverfassungsgericht approached the Basic Law's system of fundamental rights with an antipositivistic attitude that was part of the renaissance of natural law after the end of the national-socialist era.[47] Therefore, the Court referred to the fundamentals of the Basic Law -- such as rule of law, social state, and human rights -- as values (and later as principles). Understanding the constitutional order as value-oriented (and not as value-neutral), the Bundesverfassungsgericht viewed the protection of individual freedom and human dignity as the ultimate goals of the law.[48] The value embodied in a fundamental right had to be maximized.[49] In case of a collision of two values guaranteed by the Constitution, the right solution would be the one giving both as much effect as possible. Moreover, new threats to the values discerned and protected by the Bundesverfassungsgericht require the Court to treat the fundamental rights system flexible and hence adaptable -- re-interpretations become necessary that can even lead to new rights.[50] Thus, because constitutional development is not only a matter of amendment but also of interpretation, and because the Bundesverfassungsgericht is the ultimate interpretive authority, the constitutional court sees itself as genuinely entitled to develop the Basic Law. Starting from this approach, the Court has construed a system of protection significantly broader in scope and effect than the one suggested by the letter of the Grundgesetz. The value discourse used by the Bundesverfassungsgericht has provided not only the methodological tools but also the legitimacy for this undertaking. As Professor Kommers notes:
[The view of the Constitution as a value system] allows the Court to engage in open-ended decision-making while appearing to be text-bound. It is an ingenious -- some critics would say ingenuous -- judicial methodology. As Clarence Mann has written, "It harbors the illusions of determinate norms in the fact [sic] of inarticulated value premises and of judicial neutrality aloof from the creative search for normative content," yet "[i]n contrast to Begriffsjurisprudenz, [it does] not necessarily exclude considerations of political reality in the construction and application of the constitution." In short, it satisfies the traditional German yearning for objectivity in the sense of separating law from politics yet tolerates the search for purpose in constitutional law.[51]
Article 2 (1).
The Court took one of its most decisive steps in 1958, in the famous Elfes Decision.[52] It interpreted Article 2 (1) of the Basic Law, which guarantees any individual's right to the free development of her personality, as a "general freedom' that protects any human activity not covered by one of the "special constitutional guaranties' ("general right to freedom of action" -- allgemeine Handlungsfreiheit). The Court thus established an all-embracing second layer of protected human action beyond the sphere covered by the Basic Law's fundamental rights (which are now so-called "special" rights as compared to the "general" right of Article 2 (1)). Even if the sphere of life that a state action touches on is not protected by other constitutional guaranties, it will fall into the scope of Article 2 (1). Hence, the constitutional court opened the door to judicial review of all restrictive state actions.[53]
The Principle of Proportionality.
The Bundesverfassungsgericht took a second decisive step by holding that the rule of law embodies the pervasive principle of proportionality (Verhältnismäßigkeitsprinzip).[54] It requires that every limitation of a fundamental right has to meet five criteria[55]: (1) There must be a legitimate end; (2) the restriction makes use of a constitutionally valid means; (3) the means is appropriate (geeignet) to the achievement of the legitimate end; (4) it must be necessary (erforderlich) to that end, which means the restriction has to be indispensable to reach its goal, and it has the least restrictive effect on a constitutional value; (5) finally, the limitation of the fundamental right must not be excessive in comparison to the benefits to be achieved: an adequate (angemessen) relationship exists between the restriction of the fundamental right on the one hand, and the purpose that this restriction serves on the other hand.
It goes without saying that the principle of proportionality allows the Court to review legislative acts with intensive scrutiny as to the reasonableness of measures that impinge upon interests protected by fundamental rights -- and due to the Court's interpretation of Article 2 (1), practically every restriction of human action violates a constitutional right. In connection with the broad interpretation of "personality" and the wide scope of Article 2 (1), the principle of proportionality has enabled the Bundesverfassungsgericht to act as "censor of reasonableness of all governmental action".[56]
The Objective Dimension of Fundamental Rights. Finally, to complete a story that compiles the cornerstones of an ever-increasing judicial power, the Bundesverfassungsgericht 'added' an objective dimension to the subjective side of the fundamental rights.[57] Traditionally, fundamental rights had been conceived as embodying negative subjective rights, enabling private individuals to defend themselves against government intrusion into their sphere of freedom.[58] Today, they also represent objective principles[59] that penetrate the whole legal order, such as the criminal law system or the civil law system. Fundamental rights as subjective rights keep government or parliament from taking certain measures (and therefore function in a passive-reactive way), fundamental rights in the form of objective principles require the State to actively do something, either to protect citizens[60], or to give effect to fundamental rights in case they would be impeded if the State would not become active.[61] The Bundesverfassungsgericht has drawn a couple of conclusions from the objective dimension of fundamental rights. One is that every statute that has a limiting effect on a human right is to be interpreted and applied in the light of that fundamental right at stake. The most visible effect was in the area of private law, which until then had been regarded as being outside the reach of fundamental rights.[62] That has changed, and human rights have started to infiltrate the private law order -- just like the whole of the legal order -- mainly through "holes" like open-ended provisions (Generalklauseln).[63] A second implication is that governments may be obliged to supply an individual or a group of individuals with the means that are indispensable to make use of a fundamental rig ht. This flows from the shift from merely formal freedom (from the State) to a substantial notion of constitutionally protected freedom( at least in part through the State). The practical impact is that fundamental rights not only shield against state intrusions, but may also give rise to claims for governmental services.[64] A third implication is the above-mentioned obligation of the State to protect human rights against threats stemming from third (private!) parties (Schutzpflicht), most visible in the heatedly debated abortion decisions. Here, the issue was whether it was sufficient for the government to protect fundamental rights in a passive way by simply not intruding on them (e.g. no abortion must be performed by state-employed physicians), or whether fundamental rights required government to assume an active role by protecting them from intrusion by others (e.g. anyone who performs an abortion or has an abortion performed on herself is subject to criminal proceedings). The Bundesverfassungsgericht has indeed declared that due to the objective dimension of fundamental rights (in this case the unborn child's right to life, rooted in Article 2 (2)[65]), the state is under the duty to furnish active protection through the criminalization of abortion.[66] However, just as Roe v. Wade was not an everyday case, neither are the abortion cases. More often, the state's Schutzpflichten are triggered by new technological, economical or social developments that create new dangers for a fundamental right (nuclear energy, genetics, automatic data processing, or excessive noise).[67] A fourth and final implication is the state's obligation to protect fundamental rights through organization and procedure.[68] The background is the growing complexity of certain fields combined with small knowledge and the impossibility of reliable predictions (generally referred to as risk-regulating decisions under uncertainty) in areas that require state activity and that are likely to affect fundamental rights. Since it becomes impossible to guarantee protection of those basic rights by substantial statutory provisions, some procedural compensation is sought. The Court has ruled that the process of administrative decisionmaking has to be regulated in such a way that the agency is obliged to duly take into account the rights likely to be affected. Usually, this is to be achieved through some kind of participation of that individual in the regulation of her own affairs, thus enabling her to realize her fundamental rights.[69] The legislature is under a duty to pass such statutes containing procedural safeguards.[70] Since an increasing amount of decisions are preceded by long and complex procedures, the main focus of judicial review has shifted from assessing complicated technical and scientific issues to controlling actions and procedures undertaken by the decisionmakers.[71]
It is worth while summarizing the effects of the objective dimension of fundamental rights on the decisionmaking power of the Court. First, the Bundesverfassungsgericht has broken into the domain of law governing the relation between private individuals. Fundamental rights govern private relations; the Court is the ultimate authoritative interpreter of fundamental rights; ergo: the Court, if it so wishes, takes over from the Bundesgerichtshof, the highest court in civil law matters. Second, the Court has enormous influence on one of Parliament's very own domains: control over the budget. Schutzpflichten often involve costly measures, be it the state's duty to guarantee available space to study at universities (to protect the right to freely choose one's occupation) or the state's obligation to pay a certain amount of money to the neediest as the so-called existential minimum (to protect human dignity). Third, the examples of the obligation to criminalize abortion and to maintain certain procedures have shown that the Courtcan impose legislatory programs upon the legislator. Bernhard Schlink summarizes the pervasive implications of the Court's fundamental rights jurisprudence as follows:
Fundamental rights no longer protect specific freedoms of citizens against specific government intrusions, as the traditional view expected; they now protect the citizen in his entire existence against an omnipotent and omnipresent state. All law is state law; all relationships between citizens are government regulated relationships. Everything that a citizen may demand or must accept from another citizen, he demands or accepts due to government authorization. In the same way, all of a citizen's actions are relevant to his free development; all such actions are capable of, and in need of, protection as fundamental rights. In this world, where all spheres of freedom are fundamentally protected spheres and all limitations of spheres of freedom are state-sanctioned limitations, every problem of social life is essentially a problem of fundamental rights.[72]
The second criticism raised against the Court is, indeed, a version of the countermajoritarian difficulty. Those sixteen individuals on the bench in Karlsruhe (actually, it's two benches because there are two senates) are neither directly elected by the people nor are they accountable. What's more, they do not even represent the citizenry in terms of social class, gender, etc. This, along the lines of the revised story, makes it outrageous (of course only in the case of the critics' defeat in court) to allow them to invalidate laws made by representatives that are both, accountable and representative.
Already here a caveat. The Bundesverfassungsgericht does not lack complete accountability. The justices are elected by an elective chamber made up of representatives of the Bundestag and the Bundesrat, according to the distribution of seats. If we tolerate this sometimes unfortunate and over-used metaphor that German democratic doctrine is obsessed with: there is a "chain of legitimation"[73] from the people via Parliament to the Court. This mode of selecting justices moreover provides for some degree of representativeness. It ensures that the major political parties represented in the Bundestag are also represented in Karlsruhe. I might add that the two-thirds majority in the elective chamber that is necessary for the confirmation of a justice additionally ensures moderateness and keeps extremists (yes, I am alluding to Judge Bork) off the bench.
Will it come as a surprise that I agree with much of the revised story's diagnosis? Surely not, because I have already made it clear that parts of my story and of the revised story overlap. The Bundesverfassungsgericht is indeed a hugely influential player in the political arena -- this is part of the revised story, and it is one of the cornerstones of my own. The founders have indeed envisaged a strong constitutional review institution, and both the Basic Law provisions on the Court as well as the implementing Federal Constitutional Court Act of 1951 are a lively proof of this fact -- I agree. Most importantly, the Court has indeed open-heartedly accepted the power it was entrusted with, and has step by step increased it. The revised story furnishes us with an accurate description of the tools the Bundesverfassungsgericht has used in order to redraw the boundaries delimiting its own competence. Only after the Court has interpreted Article 2 (1) as providing individuals with the general right to freedom of action, the now all-encompassing scope of fundamental rights, protecting every conceivable sphere of human action, has decisively added to the Court's reach. Also, the objective dimension of human rights and the pervasive principle of proportionality have contributed to a significant accumulation of power in Karlsruhe. None of these methods can be found in the Constitution itself -- the Bundesverfassungsgericht has created them. [74] Most important of all,. the revised story is right in emphasizing the gap between the standards of scrutinity and scope of fundamental rights as they are explicitly prescribed and demanded by the Basic Law on the one hand, and the significantly more far-reaching standards declared and practiced by the Bundesverfassungsgericht. There is no denying the fact that this gap has to be the object of critical examination.
Nonetheless, I do not fully agree with the 'seizure of power' thesis. The Bundesverfassungsgericht is not unilaterally bidding for power. First, I would like to recall the fact that the Court -- unlike a legislator -- cannot pick the subjects and issues it would like to pronounce itself upon. Courts are reactive: the have to decide controversies that are brought before them. In other words: (1) There has to be controversy, and (2) the litigants have to take their matter to the Court. Access, however, is rather limited, especially for individuals.[75] In other words: Parliament (or groups of representatives) have had their share in contributing to the Court's growing power, thus creating an "undue alliance of judges and Members of Parliament in strengthening the process of judicialization of politics"[76]. The defeated minority in the Bundestag has the right to challenge the majority decision in front of the Bundesverfassungsgericht. Representatives make extensive use of this possibility in case fundamental value decisions are at stake, or the parliamentary dispute has attracted public attention and the complaint in Karlsruhe promises to win a point with the electorate. Parliament, factions, or other parliamentary groups use the Court in political maneuvers, and not rarely is the procedure before the Bundesverfassungsgericht the last straw to clutch at in order to attain political ends. What is more, even government has its share. Recently, the smaller coalition partner of the governing center-conservative party coalition (F.D.P.) has had the nerve to file a complaint against a government decision that it itself had participated in.[77] I believe that part of the explanation for such a paradoxical behavior lies in a phenomenon similar to one we come across in international negotiations. Domestic constraints can serve as an asset to sell one's own position as domestically enforced and to deny maneuverability. In the question before us, to hand over political decisionmaking power to the constitutional court may serve as an asset in dealing with one's own electorate. The -- possibly political necessary, but unpopular -- decision is made somewhere else, and therefore the responsibility lies somewhere else (and ideally, a scapegoat is also found). At any rate, parliamentarians complaining about a Karlsruhe seizure of power are Pharisees.
Besides this more formal relationship between Parliament (and government) and the Bundesverfassungsgericht there is an informal side to their interdependencies. It has been extensively proven that constitutional adjudication possesses huge pre-effects on the legislative process. Under the shadow of judicial review, Members of Parliament adjust their proposals and bills to former Bundesverfassungsgericht decisions, trying to anticipate possible future review.[78] Almost needless to say, judicial review does not have to be imminent to yield these effects. The implications seem to be more than merely a "side issue".[79] The threat of judicial review appears to have caused a certain hostility of Members of Parliament vis-ý-vis innovations and seems to have reinforced bureaucratization and formalization. This coincides with the increasing closure of the political process. The political perspective of representatives is narrowed by a juridical one. Inquiries into societal dimensions of the facts and developments of innovative solutions by the legislature and the government are replaced by a legally pre-structured subsumtion. At the same time, some authors express the fear that the Court may come under pressure of re-ideologization, ultimately forcing it into a legitimation crisis.[80]
The "seizure of power' thesis, thus, does not hold. It rather seems like a simplification of a complicated structure of relationship, or a one-sided conspiracy theory. Why, then, contrary to all evidence, does the revised story stick to it? Let us remember that this is the vision held by a defeated majority whose interest it is to undermine the legitimacy of a countermajoritarian institution. What would be more logical than to charge the Court with unilateral encroachment on the Parliament's own sphere of decisionmaking?
The same could be said about the accusations of lacking accountability and representativity because again, here is where the defeated majority definitionally has a 'competitive advantage', so to speak. However, the Bundesverfassungsgericht is undeniably neither democratically accountable to the same extent the Bundestag is, nor is it composed according to the principle of democratic representation. Of course, the point can and will be made that judges should not, even must not be accountable to the majority in the same way that officials of the other branches of government are. Although this argument is strong enough to completely undermine the validity of the conventional story's attack, it is part of a functional consideration and will therefore figure in the functional account of my own story. In the context of the present criticism, I will therefore limit myself to a few basic thoughts about the notion of accountability itself.
Just as the standard version of democracy, the revised story rests on the assumption that accountability is the key concept of democracy. The power of decisionmaking is to be rooted in the people -- therefore accountability is the necessary condition for popular sovereignty. According to this narrative, there cannot be "too much accountability". This, it must be noted, is a crude notion of democracy. Accountability, participation, representation etc. figure differently in both empirical and normative models of democracy. In a consociational democracy, for example, participation and accountability to citizens can be perceived as being undesirable. Consociationalism tries to avoid competition at the elite level. Therefore passions (e.g. aroused by elections) are unwelcome because they tend to upset the fragile system of cooperation within the cartel of elites. In this effort to counteract unstabilizing events, citizen participation is neither necessary nor wished. The action basis and maneuverability of citizens is curbed to elections.[81] Apart from undermining the outcome of coalescent elite behavior, extensive accountability and its control may even upset the coalescent elite behavior in a more fundamental, procedural sense, by turning it into adversarial behavior, thus transforming consociational democracy into centrifugal democracy. In addition, a functioning consociational democracy requires that each member of the governing elite cartel enjoys the allegiance and the support of her own rank and file. Consequently, the leaders may be induced to take not too seriously democratic principles within their own subculture. Enjoying a high degree of autonomy in running each segment's own internal affairs, they may not want to be spearheads of a movement for democratic control and accountability within their own subculture.[82] As for further examples: In competitive elitism, the role of the citizen is highly delimited and results in minimum political involvement; at least, elections grant access. Under pluralistic or neo-pluralistic models of democracy, participation in democratic control is the citizens' choice alone; however, even here a certain degree of inaction is seen to contribute to the stability of the system.[83] Even in civic republican accounts -- at least when they embrace a substantial vision of the public good -- participation need not be widespread: deliberation is the effective means to discover "the right answer', and those who are excluded from the actual practice of deliberative democracy will still benefit from its substantively good results.[84]
When it comes to the question of why, then, many political processes of decisionmaking are not at all tied to the demos as the democratic basis of accountability, the traditional answer given is the dichotomy of democracy on the one hand, and efficiency on the other. However, this is a »vision juridique simplificatrice«. The empirical and normative examples above hint at a certain ambiguity of (unlimited) accountability of decision-makers and participation of citizens. James March and Johan Olsen have explored some theoretical roots of this ambiguity.[85]
First, whether or not decisionmakers are held accountable for their actions has a significant impact on their behavior.[86] Accountability accentuates deliberateness in decisionmaking, and at the same time dilutes the substance of decisions.[87] It also tends to increase caution about change, reinforces the status quo, and reduces the readiness to take risks.[88] Moreover, it increases rigidity and accentuates defensiveness.[89] Therefore, from the psychological point of view, accountability is indeed a two-edged sword: on the one hand it increases responsiveness to social pressure and induces more careful consideration. On the other hand, it can lead to procrastination, to cautiousness about change, to the inclination to stick to a path that has proven to be wrong, etc.
Second, accountability serves one half of what constitutes a democratic community: justification. The other half, however, is good practice, and the two together form an ambivalent couple. The tension between action and self-reflection is the basic tension of governance in general. Deliberation and public justification can result in inaction, "talk and talk" can threaten practice. Incidentally, this point is close to the conventional democracy/efficiency argument.
Third, accountability may result in neglecting a long-run perspective. The notion of popular sovereignty as rulers being answerable to the people and power being conditional on satisfying popular demands is complicated through the fact that political actions and their consequences are unevenly distributed over time. Decisions involving short-run costs and long-run gains are hard to sustain under a system that relies on continuous and prior accountability rather than periodic and posterior. Thus, an increase of accountability in terms of ongoing public oversight and monitoring might result in inadequate attention to long-term investments and a long-term perspective as a whole.
Fourth, further ambiguity is introduced through the variety of political actors. If the general rule is that anyone should be held accountable who has power within a democratic polity, then it is indeed worth a thought whether courts -- and above all the Bundesverfassungsgericht -- should not be held accountable. However, it is equally legitimate, then, to hold accountable professional or occupational groups, producer and consumer groups, ethnic and gender groups, environmental and single-issue pressure groups, the press and other media, publishers, and professors -- they are all conspicuous contributors to the political scene.
Fifth, it is all but clear whether political actors are (or should be) accountable for the consequences of their actions[90] or for the appropriateness of their actions[91]. Weberian and Rechtsstaat culture have embraced the "logic-of-appropriateness', whereas the modern welfare state is more skewed towards the practices and rhetoric of the "logic-of-consequence'. In practice, actors may be held accountable for both. The situation gets even more complicated and unpredictable because sometimes, good results are brought about by not following the rules, by acting illegally, amorally, politically incorrectly, in short: inappropriately. In turn, virtuous and proper behavior may result in bad consequences.
Finally, and on the whole, it may be noted that accountability -- as an attempt to establish individual responsibility for history -- constitutes an over-simplification. First, there are multiple actors, connected in complicated interrelating networks, and it is difficult to identify the one actor that is responsible for a political outcome. Second, outcomes mirror considerable causal complexity. Today's polities are polycentered and functionally differentiated, though interconnected. Third, the standards that apply as to measure accountability are obscure. This goes beyond the consequence/ appropriateness distinction: mandates, rights, objectives -- all of those need interpretations, and additionally, these change over space and time. Assignment of responsibility for historical outcomes may hence seem rather arbitrary from time to time.
This does not mean, of course, that I put the case for non-accountability. Rather, I hint at the ambiguity of accountability -- and incidentally, it is exactly this ambiguity that makes it so attractive. On the one hand being an instrument of social control, it is on the other hand associated with a sense of personal freedom (people who are not held accountable for their actions, like children or insane people, are somehow less complete individuals). Accountability performs important functions that can hardly be over-estimated. First, we know that outcomes are ambiguous, which is why most modern theories -- whether or not they rely on substantial conceptions of the common good, values, etc. -- at least add a portion of procedural rationality and legitimacy. However, procedures themselves can be ambiguous, too. Under these conditions, the idea of personal responsibility constructs a socially valid story that explains events, relates formal authority to the results of history, builds identities and shapes reality. Second, there may be some practical reasons for the persistence of the idea of personal responsibility. One is that as long as the structure of normal discourse is construed around the story of individual control over destiny through individual choice, accounts of history will be framed by that script.[92]2 A second practical explanation is that it is well acknowledged that events may be outside human control. However, to stick to the conception of responsibility is motivational in the sense that it motivates political actors to do the best they can. Thirdly, and more importantly, the concept of responsibility is a social convention that affirms the preeminence of intentional human control over history. It not only reaffirms the meaningfulness of individual choice[93] but simultaneously reinforces stories about hope and progress.
"Truths emerge conjointly, but errors in isolation."[94] This old, insightful rule contains wisdom that will hopefully enrich this paper, too. First, I will not insist that my story has found the truth. Without even dreaming of joining an old and fundamental debate, I delightfully discover that the citation quoted uses the plural rather than the singular version for 'truth'. I suppose that this paper takes the same line. Neither do I dismiss all of the other stories' insights but will supplement my own version through their diagnosis and, where necessary, their therapy, nor will I confine myself to one single account of judicial review, its place and its self-understanding in Germany. My "story", hence, should read: my story made up of my "stories". I did not change the headline though, because indeed one story will emerge in the end, a story about the elite's distrust vis-à-vis the German people.
Before I start to tell my stories, however, let me get my categories straight. I will follow Professor Balkin who distinguishes between populism and progressivism. The main virtue of this conception is its independence from borders between political parties and thus from political views. They carry too much tradition, emotions, and morals to allow for unblurred vision on the issues at stake here. In addition, they distort the view in that they draw the dividing line at the wrong place. Popular participation and elitist discourse are matters that run at right angles t o party politics. "The distinction between populism and progressivism is orthogonal to the more familiar distinction between 'left' and 'right'. An opposition between progressivism and populism exists wholly within left-liberal discourse, just as one exists within the discourse of conservatives; we might say that the two sets of oppositions form a box of four."[95]
Populism's focus, according to Balkin[96], is on the interests of ordinary citizens. Distrustful of large organizations and massive bureaucracy, both public and private, populism is equally suspicious of elites and their claims to superior judgment. Moral or political expertise is viewed with skepticism. The purpose of government has both a private and a public side. On the one hand, "[g]overnment exists to provide individuals and their families and communities with a chance to live their own lives in dignity, and to allow them to form relationships with others free from the hand of powerful public and private forces."[97] On the other hand, populism "demands that ordinary people have a say in the decisions that affect them, that they be able to participate in those structures of power that shape their daily lives ... when they choose to participate"[98].Most importantly for the stories that are going to follow hereafter, this dual nature of populism has the following implications:
"[P]olitical participation is not something to be forced on the citizenry, nor are popular attitudes some sort of impure ore that must be carefully filtered, purified, and managed by a wise and knowing state. From a populist standpoint, such attempts at managerial purification are paternalistic. They typify elite disparagement and disrespect for popular attitudes and popular culture. Government should provide opportunities for popular participation when people seek it, and when they seek it, government should not attempt to divert or debilitate popular will."[99]
Progressivism's focus, on the other hand, is on enlightened public policy in the public interest. The educated and civilized individual will be able, according to progressivism, to determine what is best for the society as a whole.[100] Persuasion, discussion, dialogue, deliberation -- they are all tools in the service of what March and Olsen call the "shared ideological system in modern democratic societies"[101]: the commitment to rationality and reason. In contrast, "[p]opular anger and uneducated public sentiments are more likely to lead to hasty and irrational judgments"[102] Therefore, citizens have to be educated, and the more passionate and uneducated public sentiments have to be diverted and diffused. While populism is suspicious of concentration and centralization of power, progressivism locates the real threats to democratic governance elsewhere: narrowness of vision, ignorance, and parochial self-interest. Centralized authority is necessary to overcome some problems. So is expertise:
Far from being something to be distrusted, it is something to be particularly prized. Expertise is necessary to arrive at sound policy judgments; conversely, its lack often leads ordinary citizens to misunderstand the issues and make choices that are not in the public interest. Because of its respect for expertise, progressivism has always been quite comfortable with elite discourse, and progressivism is the natural home for reformers who are members of political, academic, and social elites.[103]
It will be possible to locate many of the elements of my diagnosis within this discourse about progressivism and populism, and it will turn out that not only the Bundesverfassungsgericht, but also the legal academia are heavily skewed towards progressivist ideas.
Complaints about the ossification and juridification of the political process are usually informed by perceived distortions in the relationship between constitutional court and Parliament. However, the political process includes much more than these two actors. What also matters (and what -- in Germany -- is often forgotten) is the degree of self-government of the people. It is important to remember that parliamentary bodies are just agents for the principle -- the people. Therefore, it is conceivable that an over-reaching judiciary, albeit largely affecting or even paralyzing Parliament, has no harmful effects on the polity as a whole because an active citizenry with a strong say in political matters serves as a counterweight.[104] Therefore, I feel that the question of the legitimacy of judicial review and its impact cannot be separated from the question of the people's role in the political process. In fact, any inquiry about judicial review should start by analyzing the structures of formation, aggregation, and processing of the people's preferences. This approach is almost self-evident in a framework that oscillates between populism and progressivism. As Richard Parker demonstrates, much of populism is about energizing people to participate in the political process (and then respecting this energy).[105] Control of the democratic process through ordinary people is indeed one of the leading paradigms of the populism/ progressivism distinction. How, then, can there be an exhaustive analysis without an account of the channels of direct popular influence?
The founders of the Basic Law conceptualized the Federal Republic as a representative democracy. In the light of the impossibility to envisage a large and densely populated state as Germany as an Athens or Geneva-like grass-roots democracy, this must have been an easy choice. However, it is a different story to conceive of the Federal Republic exclusively as a representative democracy. After all, Article 20 (2) commits Germany to the principle of popular sovereignty. Article 20 reads as follows:
(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority emanates from the people. It shall be exercised by the people through elections and voting and by specific legislative, executive, and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by law and justice.
(4) One of the few provisions in the Basic Law that put the in itself more or less bottomless terms "democracy" or "popular sovereignty" in more concrete terms is Article 38 (1):
(1) The deputies to the German Bundestag shall be elected in general, direct, free, equal, and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and shall be subject only to their conscience.
Apart from general, direct, free, equal, and secret elections, which constitute a minimum requirement for democracies, the Basic Law provides for direct popular involvement only in Articles 29 and 118: plebiscites and referenda may be held only with regard to new delimitations of Länder boundaries. Enumeratio, ergo limitatio: It turns out that the German people is in principle confined to voting every four years. All other forms of political activity are left either to state authorities (such as the Bundestag, or the government) or to the political parties (which are expressly mentioned in Article 21 of the Basic Law as "... participat[ing] in the formation of the political will of the people."). This has led scholars to conclude that plebiscitary involvement of the German people had been limited to a minimum after the end of World War II, being reduced to the "citizens' freedom of participation in the formation of will as guaranteed by the fundamental rights"[106].
The traditional explanation given is the necessity of a stable German state -- a historical "lesson" bitterly taught by the failure of the Weimar Republic. The Weimar Constitution of 1918 (Weimarer Reichsverfassung) allowed for a far greater deal of direct popular involvement. The Reichstag and the Reichspräsident -- the latter enjoying ample powers and performing a function close to that of an "ersatz emperor"[107] -- were directly elected by the People. The Reichspräsident's power to dissolve the Reichstag allowed him to appeal to the People against the Reichstag in questions of fundamental importance; the People therefore enjoyed additional power through this possibility of plebiscitary decisionmaking.[108] The experiment in direct democracy, as it is sometimes (in exaggeration) called, has failed for reasons too familiar for extensive repetition. It is generally accepted, however, that monocausal explanations cannot explain the destruction of Weimar. Let me hint at six possible approaches. The economic explanation brings out the economic crisis. The institutional argument underscores the constitutional defects. Sociological interpretations focus on the instability and unreliability of a petty bourgeoisie. Ideological explanations blame primary responsibility to Germany's authoritarian tradition. Marxist-anticapitalist arguments concentrate on the historically necessary crisis. Mass-psychological explanations finally emphasize the role of propaganda and mass suggestion.[109]
Thus, a wide array of reasons for the failure of the Weimar Republic and the national-socialist seizure of power has been (and still is) conceivable; therefore, a whole spectrum of consequences, too, may have been conceivable, ranging from economic and sociological to institutional possibilities. A couple of consequences have indeed been drawn -- for example, under the German Basic Law the President has lost her strong position within the institutional framework of the German state. However, the founders viewed as their foremost task to take power from the people and to avoid direct and indirect participation as far as possible without undermining the democratic legitimacy of the new polity. The "official" explanation given -- still today -- is the Weimar lesson. I believe, however, that everyone knows that the explanation also comprises the national-socialist experience. The impression of what had happened between 1933 and 1945 were still fresh in 1949. Sure enough, there is no doubt that pre-democratic traditions of the state still obstructed the working of the Weimar parliamentary democracy. However, in 1933, the Germans had voted for Hitler and, later on, raised their voices in favor of "total war" in the Berlin Sportpalast.[110] No vast resistance movement had emerged from the German people, Hitler had to be defeated "from the outside". And the German people silently watched (or turned their eyes away) from the horror of the holocaust. These experiences were not only more recent than the Weimar failure, but also far more cutting, hurting, and deeper. Who could trust a people that voted Hitler into power and allowed genocide? Thinking about the German people as a whole, suddenly a consistent picture emerged: that of a people not only without democratic roots whatsoever but also strong inclinations towards authoritarianism, obedience, submission, and totalitarianism -- all of this not starting in 1933 or 1918, but happening over a long period of time.
Of course, in Bracher's words, "it is not enough to reason in general terms about the character of the German people, and to discover, in a historical excursus from Luther to Bismarck to Hitler, the German susceptibility to dictatorship and a mentality of subservience, as was done in the initial horror after 1945."[111] I agree entirely and do not claim this simplistic and monocausal image to ring true. My claim is, however, that this is what the founders had in mind (even if they did not clearly express it) -- their framing of the Basic Law speaks for itself. Imagine a political elite that was either oppressed by the national-socialist regime, maybe tortured in concentration camps and barely escaped alive, or that had managed to emigrate in time and had watched the horror from abroad. Now, after the war, they came back, with the firm intention to construct a new Germany, a stable democracy, the opposite of what it had been for decades. The German people, who had either supported Hitler or remained silent, must have loomed in their imagination as the unstable, unknown variable. As a consequence, they distrusted the German people. Its voice had to be kept as low as possible. The practical removal of the People from direct participation in the political process was nothing but the logical implication. Naturally, a democracy requires general, direct, free, equal, and secret elections -- the Basic Law provides for that, in Article 38 (1). But real leverage was to be exerted by the political parties and the political elite. Only then, the drafters could be sure that those in power would possess a sound democratic conscience. They basically took the possibility from the German People to choose anti-democratic representatives: "Parties that, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany are unconstitutional." (Article 21 (2) of the Basic Law). It has been the same distrust vis-à-vis the People that induced the framers to lay down such an extensive catalogue of fundamental rights -- who knew whether the majority of the German People would try to override the rights of the autonomous individual again? Another plainly recognizable indication of the elite's estimation of the People is the fact that the Basic Law has never been submitted to the German People for ratification; it was ratified by representatives of the Länder. And, to come full circle, a strong constitutional court, the Bundesverfassungsgericht, would make sure that the Bundestag as the people's agent did not succumb to non-democratic temptations (like the Reichstag in 1933 which had practically eliminated itself after the Reichstag fire).
I do not intend to make the claim that the founders' worries were unfounded. The facts speak for themselves. The German people had no democratic foundations; instead, they had just been going through more than a decade of totalitarianism, authoritarianism, and war. Questions of individual and collective guilt divided the people and made them insecure. This was indeed hardly a reliable demos to build on. As strongly as I agree, however, with the Basic Law's institutional appropriateness for a weak demos, I also and equally strongly claim that the distribution of power of the year 1949 does not fit the 1995 situation any more. Is there any denying the fact that the German demos has learnt a great deal, has developed a strong democratic consciousness and evolved into a civic community that can be trusted in the democratic processes? Is it not time for the "emancipated citizen" ("mündiger Bürger") to become, at least, institutionalized reality?
It is amazing how the anti-plebiscitarian affect has persisted until today, and how strongly it still resonates in the dominant strand of German constitutional law. The historian Bracher cites President's Heuss' word of plebiscitary institutions being a '"boon to every democracy" and maintains:
[D]ecisions that allegedly require plebiscitary votes can be abused for the dictatorial usurpation of power. Of course democratic plebiscites on the Swiss model must be distinguished from dictatorial ones. However, against the argument that they raise the level of political involvement -- the magic word "participation" -- we should point out two things. First, the level of voter participation in this country [=Germany] is higher than in those democratic plebiscites. Second, experience has shown that the incitement of mass sentiments through frequent plebiscitary acts of voting can exacerbate a situation, especially in times of crisis such as existed between 1930 and 1933. Changing our [=Germany's] political system in a more plebiscitary direction remains a risky prospect.[112]
Renowned legal scholars hold the view that even consultative public polls (i.e. polls carried out by the state which are non-binding for the authorities, leaving them their freedom of decision) are not only interdicted by the Basic Law but must not be introduced through constitutional amendment.[113]
Superficially, this apparent inflexibility of the political and the legal elite to realize that the sociological context has changed and that therefore today, a different reading of the Basic Law should prevail, poses a riddle. However, we should not be too surprised. I believe we can shed more light on it by coming back to our populism/progressivism paradigm. A political elite devises a constitution so that the people has as little say as possible, and yet the polity is to be a democratic one, the demos is to develop into a democratic demos. Does this sound like energizing the people and then, once its energy is unleashed, respecting it? No -- rather, we are dealing with an elitist discourse, with elite participation, with professional politicians running the political parties and the state, with enlightened experts likely to arrive at sound policy (and value) statements. We have already encountered the progressivist attitude that "[g]overnment and public participation must ... be structured so as to produce rational deliberation and consensus about important public policy issues"[114]. The people cannot be counted on in 1949 -- and therefore government has to carry the whole burden of producing enlightened policy on its own. Reason, rationality, persuasion, discussion, discourse -- all these are purely governmental tasks, for the time being. The people has to be convinced only in relation to elections, the rest of the political discourse can be legitimately confined to the governmental sphere. The state, hence, is the sphere of knowledge and expertise, of enlightened policy choices, even more: of enlightened value setting, of virtue and purification. History, then, suggests a conception of the polity that comes close to Hegel's notion of "der sittliche Staat" as the ultimate sphere of universal altruism (as opposed to the civil society being the sphere of universal egoism).[115] This is acceptable, at least for a while: the progressivist is not too concerned about concentration of power. It is even necessary, again at least for a while, since -- unlike Balkin's notion of "narrowness of vision, ignorance, and parochial self-interest" being the vices of "popular anger and uneducated public sentiments"[116] -- the unleashed German people produces far worse outcomes: torture, genocide, world wars, holocaust, and millions of deaths. Participation, therefore, is to be limited in principle to the elite. Commitment to populism's conception of self-rule and popular participation if the people so chooses is nothing more than lipservice. But there is more. A time of new departures, such as after the end of World War II, is not only looking backwards and desperately trying to heal wounds -- it is also characterized by stories of hope and progress. In Germany, these were embodied in the idea that the German demos is educable (albeit, perhaps, difficult). There is hope that Germany may become a stable and reliable democracy; and there will be progress in this direction if the German people is, over time, being taught the virtues of democratic civilization. This post-war ideology, of course, strongly coincides with progressivist convictions. Popular will can and should have a decisive role to play in the process of rational deliberation about policy choices, but only after sufficient education. To govern means to make sound judgments in order to arrive at choices in the public interest; to make sound judgments requires expertise; ordinary people usually lack that expertise. Their participation in political decisionmaking is desirable only to the extent their education enables them to arrive at purified self-reflection. This entails more than purely rational reasoning according to the rules of democratic procedures. Progressivism taken seriously also means to be morally concerned and to conceive of democracy as a "system of education and socialization in the service of human virtue, as a collective faith and way of life"[117]. Progressivism assigns this sphere to the state, just as the framers of the Basic Law did.
This is, in itself, a construction that makes sense. What, then, am I complaining about? Shouldn't we admire and be thankful for the progressivist agenda? Let us disregard, for a moment, populist objections against progressivism, arguing against elite presumptuousness of telling people what democratic culture is and what not. Even leaving this claim aside, there is a fatal flaw in progressivist reasoning. Jack Balkin describes this as a dilemma:
[P]recisely at those moments when the citizenry is most eager and engaged, progressives are rarely pleased with the results. An energized populace is, unfortunately, empowered by popular sentiment and popular passion. Progressivism tends to be suspicious of such energy, thinking it usually badly informed and misdirected by clever manipulation. Thus progressivism finds itself continually hoping for an active citizenry, but perpetually in fear that it will get what it wishes for. ... It is the simultaneous trust of the democratic process in the abstract coupled with a distrust of the same process when goaded and controlled by ordinary citizens.[118]
If we try to follow up on this path, we might come to locate this schizophrenia within the progressivist logic itself. It fails to clearly define the goals and boundaries of its educational vocation. When is the citizenry sufficiently educated to be considered capable of dealing with its own affairs? Where is the point at which the teacher releases her pupil? Progressivism cannot give a response to these questions, at least not one that is practicable. Educating people into enlightened, wise, community-oriented, responsible citizens is a never-ending task. It can never be fully accomplished. In so far, the limitation on elite government proves to be inefficient. Once the notion of an unenlightened citizenry, as opposed to a virtuous sphere of state government, is accepted, there is little hope for operationable stoppage.
It is exactly here where my criticism of judicial review in Germany finds its theoretical and empirical basis: the Bundesverfassungsgericht, being the most outstanding epitome of elite and expert discourse imaginable, has missed the point in time to back away from its educational goal, unable to see that German society has evolved into a democratic and civilized demos. Just as it is presumptuous and paternalistic to try and educate your 30 year daughter or son, it is equally paternalistic to fulfill an educational task which has lost its legitimacy. Actually -- and here lies the almost tragic paradox of activist judicial review through the German Court -- the Bundesverfassungsgericht's story is one of ultimate success. It has educated the German people. Both the German state and the German society are stable. Like old violinists, however, the Court has missed the right time to stop performing in public and to have its records speak for itself. At the moment, it risks its excellent reputation and undermines its authority. This is not only imprudent and undignifying in the backwards perspective, it is also dangerous when we look into the future. The Court deprives itself of the possibility of remaining a self-restrained referee in cases that the civil society cannot cope with its internal conflicts.
It is interesting to supplement the founding saga with a story that focuses more on the legal profession as such and the environment it used to operate. Why, for example, has there been so few scholarly resistance against the Bundesverfassungsgericht's early, fast, and considerable expansion of power? Why did the legal academia not oppose the (early visible) tendencies of judicialisation and ossification of politics? First, the surprising unity of the Court's jurisdiction and legal profession may be rooted in the nature of German legal discourse, which, since the war, has mainly focused on details of more or less technical nature. The discourse of objectivity has ruled (and still rules), and is reinforced by technicality.[119] Technical criticism, of course, hardly ever mounts up to a fundamental or principled critique of the Court's legitimacy. Second, another reason may have been that the Court's approach was widely seen as appropriate. After all, the German people had no democratic roots; people were tired, shocked, guilt-ridden, and had pressing economic needs -- in general, an atmosphere that discouraged political dialogue. Someone had to assume both political power and moral leadership; the sphere of virtue had to be occupied somehow. Why not by the Court? Third, post-war Germany had quite some difficulty in coming to terms with its national-socialist past. National-socialism had hardly been adequately -- or even partially -- studied and reviewed in the Germany of the early sixties. The sword of Damocles (in the form of a shattered past full of violations of the most basic standards of respect for human rights) hung over the German society. The Bundesverfassungsgericht, however, was developing a legal narrative full of "rights talk"[120], expanding the system of fundamental rights under the Basic Law into an "objective value order" under the shield of the paradigms of protecting human dignity (as mentioned in Article 1 (1) of the Basic Law) and of safeguarding the democratic polity against possible future totalitarian regimes. At the same time, this discourse went under the heading of "lessons from Weimar and Hitler" -- taken a country that had undergone "denazification", who would have stood up against that? It stands to reason that it is not easy to criticize decisions based upon anti-totalitarian safeguards and intended to strengthen the individual's position against the state. The claim that the Court gave too much weight to individual autonomy and too little attention to democratic/ majoritarian features must have been practically unspeakable.
This is even more valid if we think of the general political climate those days. Germany was divided; the German Democratic Republic was under the influence of the USSR; the iron curtain went right through the middle of Germany and Berlin. In 1961, during the Cuba crisis, the world was on the edge of a nuclear war; in 1963, the wall was built in Berlin, being the most visible sign of what was not only (rightfully, I might add) brandmarked as communist oppression but what was as well perceived (and constantly rhetorically reinforced by the then conservative German government) as the communist threat from the East. In this climate, the Bundesverfassungsgericht was underscoring the importance of individual freedom. Taken that freedom used to be the paradigm of the Western democracies to dissociate themselves from the Eastern "popular democracies" -- who could have had the nerve to criticize this?
Certainly not the German academia.[121] Many law professors who had "ventured forward" during the national-socialist regime received tenure at re-opened West German universities. Scholars who had been deeply involved with the Nazi regime returned to their institutes and became again members of the Association of German Constitutional Law Teachers (Vereinigung deutscher Staatsrechtslehrer); only a few exceptions seemed unbearable.[122] On the other hand, only a few scholars who had emigrated came back and were ready to work in Germany again.[123] Finally, there were a few of the older generation who had been mainly silent during the Nazi regime.[124] In contrast, the Bundesverfassungsgericht was filled with unencumbered, "clean" jurists.[125] Professor Kommers, in his excellent first work on the Bundesverfassungsgericht, provides us with a short account:
What Fröhlich and Wolff did have in common with Katz and Leibholz -- the only four members of the original Court who shared the experience -- was that they were forced to flee Nazi Germany. Fröhlich lost his job in the civil service in 1933, when he fled to Holland, and later lost his son in a concentration camp. Wolff left Germany in1938, remaining in England until the war's end. But these were not the only Justices with "clean" backgrounds. In addition to the four refugees, nine of the Justices had been dismissed from public service or hindered in their careers for opposition to Nazism. Three, including Höpker-Aschoff, resigned from government service and sat out the Nazi period as private citizens. The remaining Justices, if in public life at all, had positions of minor importance.[126]
Justices selected later to replace others whose terms had expired had clean backgrounds, too. Suffice it to name two examples: Josef Wintrich, named in 1954, left public office in 1933 as an outspoken opponent of Nazism; Fabian von Schlabrendorf, named in 1967, was most well-known for his active participation in the 1944 plot to overthrow Hitler. Taking this juxtaposition into account, is it really conceivable that the German legal profession, above all the law professors, would have effectively opposed the Bundesverfassungsgericht? And in the light of the German legal education system which makes assistants and Wissenschaftliche Mitarbeiter (that is those aspiring to receive a tenure later) heavily dependent on the support of their professorial teachers, it is hardly surprising, either, that this situation kept on having effect for generations.
Furthermore, the shadows of Weimar and the national-socialist era kept haunting the German Staatsrechtswissenschaft in another way. The problem of judicial review and its legitimacy had been heatedly debated during the Weimar republic. While we can distinguish between the antipositivistic school (in two variants: one conservative strand with Heinrich Triepel, Rudolf Smend, Erich Kaufmann, and Carl Schmitt; and one socialist strand, with Hermann Heller and Friedrich Neumann), the positivistic school (again, in two variants: one liberal strand with Richard Thoma and Gerhard Anschütz; and one socialist strand with Gustav Radbruch), and the Kelsen school, there is no denying the fact that the battle was mainly fought between Carl Schmitt on the one hand, and Hans Kelsen on the other. Schmitt argued that the constitutional court was unable to intervene in central political conflicts and entrusted the President (with his almost dictatorial power) with constitutional control. Kelsen, in contrast, developed a theory of judicial review and advocated a strong constitutional court. Schmitt became the crown jurist of a national-socialist regime which left no room for judicial review which was despised as a "postulate of liberalistic democracy and a requisite of parliamentary constitutionalism"[127]. Kelsen, a Jew, was expelled from Cologne University and had to emigrate to escape murder. After the war, Schmitt, due to his writings and actions during the national-socialist era, was taboo[128]; to deal with Kelsen's "pure theory of law', however, was "politically correct'. It must have seemed to the critics of strong judicial review that their position was compromised by Schmitt's biography.[129] This, of course, is a simplified vision of the possible critique of judicial activism. However, the wounds and the horror were still fresh; it was, I believe, too early to see that Schmitt was grotesquely wrong, but that this did not automatically imply that the Bundesverfassungsgericht (or Kelsen's claim for a strong judicial control) was untouchable.
What one can learn from this experience is that the German version of progressivism, yet again, goes further than what Jack Balkin had envisaged. Balkin's progressivism[130] is about "the need to restrain popular will by filtering popular sentiment through the more dispassionate expertise of elected representatives"[131] and about elite discourse as a "natural home for reformers who are members of political, academic, and social elites."[132] Those are quite large in number: We can imagine politicians, artists, law professors, and many more. The German version of progressivism that I am describing here is more radical. It has added the distinction between state and society (Staat and Gesellschaft), between public and private, and it has eventually reduced the elite discourse to the public, statal sphere.[133] The filtering process is performed by the government, as is the educative task. If we want to draw a narrow circle, then the ultimate setting of values falls to the Bundesverfassungsgericht, and even Parliament (as the people's foremost agent) appears to be affected by the very same virus the people suffers from. The people (and, at times, Parliament, too)[134] is restricted to the other side of this boundary: it is the subject of education, filtering, and purification.
The last lines of the historical account suggest a hierarchy even within the purified governmental sphere in Germany: it seems that the Bundesverfassungsgericht is the spearhead of rationality, deliberation, education, and moral weight, even vis-à-vis the Bundestag. Is this really the function of judicial review? Especially the relationship between constitutional courts and legislatures has prompted a flood of functional accounts of judicial review; the majority of which -- at least in America, and at least since Alexander Bickel's work "The Least Dangerous Branch" appeared in 1960 -- has been concentrating on the counter-majoritarian difficulty. [135] Less so in Germany, where scholars have done their best to reconcile constitutionalism and democracy, and thus have tried to smoothen the tension between majority rule and individual rights.[136] To be sure, this in principle is an admirable goal. However, it has led German scholarship to ignore (or explain away) the fundamental tension -- and hence, to avoid a substantial discussion of the Bundesverfassungsgericht's function and legitimacy.
The limited framework of this paper is not the place to discuss the reasons for majoritarian rule -- although, before one can talk about the vices and virtues of countermajoritarian institutions, one should be aware of the conception against which it is directed.[137] Let me briefly mention, then, one argument that will clearly identify the majoritarian danger (and insofar lead to countermajoritarianism). Majority rule is close to utilitarianism. If many people prefer x to y, then the choice of x is likely to yield more aggregate welfare than if y would have been chosen.[138] Both, majoritarianism and utilitarianism, share the same opponent: the defender of individual rights. She maintains that to both -- the greatest good for the greatest number of people, and the rule of the many over the few -- the respect and concern for the individual works as a trump.[139] It is this danger of the majority tyrannically overpowering the minority that seems to make the necessity of a countermajoritarian institution like a constitutional court immediately intelligible.
However, the need to protect minorities does not solve the question: how can a nonelective body be justified in a democratic regime? Why can judges who were neither placed in office by the majority nor are directly accountable to the majority possess and exercise the power to invalidate majoritarian policies? The American discussion provides us with a couple of models, all of which highlight important aspects of the conflict. Here's a short overview. [140]
One answer is that the countermajoritarian difficulty is insurmountable. There is no way around the concession that, as soon as judges invalidate the outcome of a democratic process, they necessarily violate the principle of majoritarian democracy. This view of judicial review as an inherently antidemocratic institution has two strands. The first one is originalist constitutionalism, and its major proponents are Robert Bork[141] and Chief Justice William Rehnquist[142]. As soon as judges depart from the surface of the constitutional text, they act in an inherently antidemocratic way because "[t]he original Constitution was devoted primarily to the mechanisms of democratic choice."[143] Therefore, judges should respect the will of the legislature unless the legislation is clearly contrary to explicit constitutional provisions. The basic starting point of originalism is the lack of privileged answers to questions of political morality beyond those explicitly embodied in the constitution or embraced by the political majority. Governmental power is justified only insofar as it reflects majoritarian will. Judges are not directly accountable to the majority, which is why they have to refrain from acting contrary to the majority's will (unless the constitution explicitly provides so). Also, judges should defer to other branches, unless those are obviously wrong.
The second strand agrees that the countermajoritarian difficulty is insoluble; however, its proponents do not lament judicial power but appear to endorse it. Located on the opposite end of the political spectrum than Bork and Rehnquist, they also view judicial review as "an 'all or nothing' proposition": "Either one allows judges to do whatever they want or one allows majorities to do whatever they want."[144] While they defend judicial activism, they emphasize different institutional roles for judges than the traditional view. What's more, judicial decisions are inevitably political decisions. The proposition is a political theory of constitutional law: "[J]udges [should] not delude themselves into thinking that what they do has significance different from, and broader than, what every other political actor does."[145]
In co