|
|
©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 contrast to these two pronouncedly "antidemocratic" models, other approaches have tried to reconcile democracy and judicial review, mostly by placing the latter in the service of the first. We can roughly distinguish between three strands: the enlightened preferences-oriented, the participation-oriented, and the rights-oriented models.
The first category, the enlightened preferences-oriented model of judicial review[146], lumps approaches like Professor Bickel's and Professor Ackerman's together. In spite of all the important differences, these models share even more important features. Both start from the fact that democratic legitimacy is ultimately rooted in majoritarian consent; and both argue that judicial review is, more or less, a representative institution. Bickel views the judiciary as negotiating the tension between the majority's shortsighted preferences -- represented by the legislative and the executive branch -- and those principles that will be embraced by the majority in the longer run. The courts, according to Bickel, are the institution best suited to protect these principles and to be "the pronouncer and guardian of such values".[147] Bruce Ackerman, on the other hand, distinguishes between decisions made by everyday political institutions, and those that produce "higher" politics.[148] "Normal Politics must be tolerated in the name of individual liberty; it is, however, democratically inferior to the intermittent and irregular politics of public virtue associated with moments of constitutional creation."[149] Thus, judicial review, in times of everyday politics, preserves the political identity which the majority fashioned for itself in times of high politics, the majority's better self. Steve Croley perceptively observes that "in contrast to Bickel, Ackerman's conception of judicial review is past-regarding, not future-regarding."[150] Despite this significant distinction, both, Bickel and Ackerman, reconcile democracy and judicial review in a similar way through the following steps of argument. The exercise of governmental power is legitimate when it furthers the majoritarian will -- which, however, manifests itself on different levels of willfulness. If constitutionally expressed, democratic will is more authoritative than its everyday expression. Judges, not being directly accountable to democratic majorities and therefore less influenced by everyday politics, ought to preserve the more authoritative democratic will of themajority against its less authoritative expressions.
Another attempt at overcoming the countermajoritarian difficulty is made by (mainly) Professor Ely's participation-oriented or representation-oriented model of judicial review.[151] According to Ely, courts should play the role of the "watchdog of democracy" by ensuring that no-one is excluded from democratic decisionmaking processes and that policy decisions are arrived at through truly democratic processes (as set forth in the constitution). In analogy to antitrust, courts should not interfere with the "political market" if allocations are unfair or unjust; their task is, instead, to make sure that those allocations were arrived at in a fair and just process. Ely's proposals can therefore be summarized as follows: The exercise of governmental power is legitimate to the extent it furthers majoritarian will, subject to explicit constitutional limitations. The executive and the legislative branches are sufficiently accountable to exercise political power -- the judiciary, due to its lack of accountability, is not. Therefore, judges have to refrain from decisionmaking contrary to majoritarian will (again, unless they are explicitly required to do so by constitutional provisions). However, democracy bears the danger of powerful majorities disenfranchising political minorities. It is thus the judiciary's task to safeguard democratic processes (especially the right of political participation), even if the political branches are not obviously wrong or the constitution is not completely explicit.
The rights-oriented model, finally, is located on the opposite side of the substance-process debate in constitutional theory. Its most outspoken proponent is Ronald Dworkin.[152] The starting point is that the constitution embodies individuals' moral rights against the government and against the majority, even if these moral rights are not always explicitly enumerated. Thus, the invalidation of legislation which is in violation of these rights is both consistent with the constitution itself as well as with utilitarianism underlying majority rule[153]: judicial constitutionalism and majoritarian democracy manifest the same commitment to the moral equality of individuals. The structure of the right-oriented argument, therefore, is as follows: The constitution stipulates ascertainable answers to the question of which rights warrant protection from the majority, so that governmental power is not always legitimate when it furthers the will of the majority. Instead, it is legitimate to the extent it furthers majoritarian will and respects the moral rights that individuals possess against the majority. The decision about the identification of these rights should not fall to the majority itself; therefore, judges should make this decision as they are not accountable to the majority in the same way that the other political branches are. Thus, adherence to the democratic constitutions requires the judiciary to enforce constitutional protections against the majority and to explicate the scope of these rights.
Obviously, all of the above models have to be taken very seriously in that they illuminate important aspects of the function of judicial review. However, it is equally obvious that they cannot offer entirely satisfactory solutions to the countermajoritarian difficulty. Each of them has one or more weak points. Ackerman's model, e.g., seems not only to give a, say, peculiar account of constitutional history in America, but also engage in some kind of meta-discourse which only with considerable strain fits into a constitutional law narrative.[154] Bork's originalism can, inter alia, be rightfully attacked as to its naive approach towards language which, especially in constitutions, happens to be ambiguous and imprecise.[155] Ely's model suffers from his utilitarian understanding of the commonweal and his overillumination of constitutional process vis-ý-vis values.[156] Dworkin's conception, finally, comes under heavy attack through characterizations such as subjectivistic, arbitrary, and undemocratic.[157] What remains, despite all attempts at reconciliation[158], is the impression of a sizzling tension between constitutionalism and democracy[159] or, in Professor Burt's words, between majority rule and equal self-determination.[160] I believe it will be useful to go back to this tension and conceptualize the way in which majority rule may infringe on individual rights.
In an attempt to be more systematic, I will make two distinctions beforehand.[161] The first concerns the relevant majority, notably whether it is parliamentary or popular. The second differentiates between three motives that move members of the majority to infringe on the rights of the minority. standing interests, standing passions, and momentary passions. With the help of these distinctions we can identify a couple of categories, composed of different combinations of actors and motives.
First, a parliamentary majority acts out of its standing interest to preserve itself as a majority and manipulates political rights to increase its chances of re-election. We can imagine the majority redrawing electoral district boundaries in its favor, or changing the timing of an election according to the economic situation or public opinion polls, abusing state-owned television or public radio. Second, a parliamentary majority might act out of a standing (or sometimes momentary) passion -- amour-propre, or vanity and self-love. Elster hints at the deputy Bergasse at the French Assemblée Constituante who argued that "a suspensive veto of the King would not have the intended effect of making the assembly reconsider its vote, because its amour-propre would prevent it from backing down."[162] Third, a popular majority (acting through its representatives) might act in the standing interest to further its own economic interest; an example may be a relatively propertyless majority enacting laws that run contrary to the right of property. Fourth, a popular majority (that manages to impose its will on parliament by nonelectoral methods) may act under a sudden impulse, that is, a momentary passion. The risk of such legislation is high in times of emergency situations or war (an example is the American internment of Japanese-Americans during World War II). Fifth, a popular majority (again acting through its representatives) under the sway of a standing passion. This may happen ion the case of the suppression of ethnic or religious minorities.
Taking a step back again, these five cases can be regrouped under new paradigms. Cases 1 and 2 describe a deficient principal-agent relationship between the people and Parliament, due to the representatives' failure to accurately perform their function as the people's agents.[163] This I will call the agency problem. Cases 3 to 5 describe a deficient relationship between different groups within the people, namely the majority and the minority. This I will call the minority problem. It is our task now to locate the function of judicial review somewhere in this framework of relationships.
As to the agency problem, one would expect the constitutional court to perform the function of the majority's agent. After all, Parliament should act according to the mandate that it is given by the people. If the majority within the people advocates a specific solution to a given problem, its representatives should implement it. To be sure, representatives are independent and not bound by their constituencies; but still, this is what we would expect.[164] The agency problem, in this reading, is a story about the legislative branch dissociating itself from its principal. It ceases to perform its function as the majority's agent. As a consequence, it would be the Court's role to step in -- on behalf of the majority.[165] The Court, again in this understanding, is not the agent of suppressed minorities or a neutral referee; it is the majority's agent. However, this reading does not ring true. It fails to take into account the fact that the agency problem contributes to an infringement on the rights of individuals. As the examples above have clearly demonstrated, the agency problem can be viewed as part of the problem of how majorities violate minorities' rights. For instance, a Parliament that acts out of self-love is, on the one hand, not faithful to the popular majority because, instead of acting out of considerations that are important for the majority, it acts out of vanity and amour-propre. On the other hand, it massively disregards the rights of the minority. In the light of the latter violation, it would be the Court's task to step in -- this time on behalf of the minority! As a consequence, the function of judicial review in relation to the agency problem cannot be reduced to an agency function for either majority or minority. Both, majority and minority preferences are at stake. The Court steps in, but neither exclusively on behalf of the majority nor of the minority. Let us take another example of the agency problem, this time one that has to do with differentiation of minorities. The legislature, in its decisions, gives way too much weight to the interests of one strong pressure group. Surely, by doing so, Parliament considerably departs from the will of the majority. But at the same time, it also neglects the legitimate interests of all other minorities. If the Court invalidates such legislation, it acts on behalf of the majority, and simultaneously of other minorities.[166] Again, its role cannot be reduced to the agency of either majority or minority.
Turning to the minority problem, we encounter a similar problem. To be sure, judicial review's obvious function is to protect minorities' rights from infringement by majorities. However, what we can learn from pluralism and neo-pluralism is that majorities are usually unstable and change, so that parts of today's majority will find themselves as a minority tomorrow. Majorities also differ in relation to the issue concerned -- the boundaries between majorities and minorities are orthogonal to groups and individuals.[167] This observation surely does not justify the trust in the market of opinions that neo-pluralism is ready to place in it. But it helps to explain that even the majority has a vital interest in not doing away with the rule of law, with rationality, procedural predictability, and, to nail it down, the protection of minority rights.[168] This may be the remaining essence of the above-mentioned attempts to reconcile democracy and constitutionalism: It is here where Bickel's long-term principles and Ackerman's enlightened popular will, Dworkin's moral entitlement to equality and Ely's clearance of the channels of political change come together. The implication is, again, that agency for the minority and agency for the majority aren't separate things. Both problems, agency and minority, point to the conclusion that the Court has to reconcile between their interests.
This thought is supported by an argument about the relationship between the people and the majority. Basically, there are two possibilities. First, "people" could mean the majority. Governance of the people then would be governance of the majority, popular will would be the majority's will. Particular interests, then, are excluded from the majority will. Minorities, in this model, would need neither particular rights nor particular protection. Constitutional provisions could exhaust themselves in organizational and structural norms, guaranteeing a fair formation of a majority and a fair electoral process. Of course, this model exposes itself to the accusation of the possibility of unfettered tyranny by the majority. The second possibility is a concept that views popular will as applying to the whole citizenry, i.e. as including the majority and the minority. Minorities and the political opposition are part of the popular will. The principle of majority, according to this account, is a mere norm regulating the voting process, serving the purpose of deciding between different strands of a substantially plural will. The minority has the same rights as the majority has, and enjoys equal, even preferential protection. This is the difference between mere formal and additional substantial protection of minorities. [169] Of course, in the light of the foregoing, there is no doubt as to which conception is favored in my account. Moreover, the Basic Law does not leave me any discretion; I may recall Article 38 (1), second sentence:
(1) ... They [=the deputies to the German Bundestag] shall be representatives of the whole people...[170]
In other words, democracy and constitutionalism are not reconciled in my account. But they come together in the sense that both have equal impact on the institution of judicial review. The Court is neither the majority's nor the minority's agent. It has to perform both functions at the same time.
This is the theory. However, to yield consequences for German constitutional law, I need to show that the Basic Law supports my construct. According to Professor Ackerman, the German Basic Law, is plainly foundationalist.[171] Foundationalist democracy is characterized by the constraint of populist enthusiasm through a deeper commitment to fundamental rights. In contrast to this, monists are described as hostile to rights, "at least as foundationalists understand them".[172] Under monism, "[d]emocracy requires the grant of plenary lawmaking authority to the winners of the last general election -- so long, at least, as the election was conducted under free and fair ground rules and the winners don't try to prevent the next scheduled round of electoral challenges."[173] While Ackerman's paradigms are in the same vein as the German leading discourse in that "the whole point of having rights is to trump decisions rendered by democratic institutions that may otherwise legislate for the collective welfare", it is my aim to reconstruct the ambiguity of rights in relation to popular sovereignty. My attempt to bridge the divide between foundationalism (being very obvious in the Basic Law) and monism (which I believe is under the surface of it) may combine the virtues of both models. The precondition for the success of this undertaking, however, is that the principle of democracy, as it is laid down in the Basic Law, is not inherently trumped by the Basic Law's constitutionalism.
The principles of democracy and popular sovereignty (both in Article 20) compete above all with the principle of human dignity. Article 1 of the Basic Law reads as follows:
Article 1
(1) Human dignity is inviolable. To respect and protect it is the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly enforceable law.
Both, constitutional scholars and the Bundesverfassungsgericht's jurisprudence converge in their assessment that human dignity is at the very top of the value order of the Basic Law.[174] As such, it informs the substance and the spirit of the entire document.[175] Mainly two arguments tend to reappear in support of this claim: structure and history. I am not particularly impressed by the structural argument that human dignity as a constitutional value is codified in Article 1 of the Basic Law, i.e. at the very beginning. Of course, there is some symbolic value behind this. But take into account that Articles 1-19 contain the German "Bill of Rights", i.e. the catalogue of fundamental rights. The structural provisions of the Basic Law start with Article 20 -- and it is precisely this first article after the enumeration of fundamental rights that contains the central provisions on democracy and popular sovereignty. Furthermore, it is doubtful whether the mere position in the Basic Law -- like numbers on a string -- makes up a striking argument. One would hardly argue, for instance, that the right to send petitions to the Members of Parliament is to be taken more serious than the fact that Germany is a democratic and social federal state, only because the former is codified in Article 17 whereas the latter can be found "only" in Article 20.
The historical argument, however, has more weight. I will not doubt that the drafters were primarily motivated by the experience of the Nazi regime in which even the most basic human rights were being trampled upon. There is little to respond to this. Although I have argued before in favor of some re-evaluations of historical assessments, this is certainly not the point to gamble around. Human dignity, no doubt, is a fundamental principle of the Basic Law. But let me add some cautious remarks. First, I would like to draw attention to the actual material contents of Article 1. The state violates human dignity when it treats persons as mere objects.[176] This formulation hints at the fact that Article 1 will not be applicable or violated all too often. State action must reach considerable extent to trigger the protection granted by Article 1. On the other hand, all I have said above illuminates that the principle of democracy is involved in so many problems and cases that a purely quantitative analysis will show the need for greater sensitivity in relation to the democracy issue.
A second point I would like to raise is a very down-to-earth textual argument. Article 79 (3) reads as follows:
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.
Is it really admissible, in the light of the clear wording of Article 79 (3) positioning the principles contained in Articles 1 and 20 side by side, to grant human dignity such an outstanding status, as it is done by the Bundesverfassungsgericht and the majority of scholars?
Furthermore, and perhaps most strikingly, there is a logical contradiction involved in giving priority to the principle of human dignity. In Professor Dworkin's words:
[D]emocracy is not just one right among others, but a theory about how a community should decide what other rights to respect. So if we prefer a Supreme Court Justice's opinions about what counts as free speech should be protected to the opinions of a democratic majority, we are contradicting our most basic assumptions about how a community's values ought to be chosen. The true contrast, we might say, is not between democracy and other values, but between democratic and elitist methods of deciding what other values to recognize.[177]
To put all in a nutshell, it turns out that the Basic Law allows (and, today, requires) an interpretation which places the constitutional principles of constitutionalism (in the form of human dignity and fundamental rights) side by side with the constitutional principles of democracy and popular sovereignty. This means that both sides mutually influence each other. Each application of fundamental rights has to take into due account the weight of democracy and popular sovereignty. Any argument that relies on majoritarian will, on the other hand, has to consider human rights. The Bundesverfassungsgericht's jurisprudence, however, has focused on fundamental rights and thus acquired its pervasive powers. It is time now to step back and reconstruct the power of the people through the weight of the principles of popular sovereignty and democracy.
Maybe Professor Badura is right in reminding critical constitutional scholars that it is unfair to attack the Bundesverfassungsgericht's jurisprudence on the grounds of "bad political theory" or "bad political philosophy".[178] After all, the Court can only pronounce itself on cases that are brought before it, and it usually has to confine its reasoning to thoughts that have direct implications on the outcome of the case. Even so, however, it becomes clear after more than forty years of ruling, that a specific political theory informs its decisions. The Bundesverfassungsgericht's decisions are contextually nourished. They do not arise from a vacuum but are constructed from pre-decisional materials. This preconceptual frame of reference -- Professor Esser has coined the term "Vorverständnis"[179] -- will be called the Court's "theory", whether it lives up to the demands we normally make on political theory or not.
My analysis will be focusing on the Bundesverfassungsgericht's image of man and polity. If my previous thoughts were correct -- namely history and function in the conventional and revised reading suggesting a strongly progressivist attitude towards the political process -- then we would expect that the Court's notion of the individual and its place within the society resonates in the same vein.
From the beginning, the Court has always tried not only to avoid to settle for one specific political (or, for that matter, democratic) theory, it also has attempted to paint a balanced, unbiased, and comprehensive picture of its Vorverständnis. To be sure, the Bundesverfassungsgericht's jurisprudence is deeply rooted in a (weakened)[180] pluralist vision of the political process and a liberal vision of the individual. However, we will not find extreme individualistic passages in its decisions, nor will we find unconditional faith in the marketplace of opinions. Rather, the Court is remarkably eager in finding a convincing balance between its understanding of the human person as an autonomous, self-determined individual on the one hand, and a person's commitment to the community on the other hand. References to the human person as a "spiritual-moral being" are countless (and it may be noted that the rights that individuals are entitled to, are found in a "preexisting supra-positive order of justice").[181] Less numerous, but still conspicuous are the references to the individual as community-centered. Take, as an example, the Court's statement in the Investment Aid Case:
The image of man in the Basic Law is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person's dependence on and commitment to the community, without infringing upon a person's individual value.[182]
Consider also the Mephisto Case in which the Court refers to "man as an autonomous person who develops freely within the social community"[183].
Students of the Court's jurisprudence -- above all, if I may say so, those familiar with the Supreme Court's jurisprudence and US-American constitutional theory -- have praised this conception to the skies. Let us listen to Professor Kommers' judgment who, after noting the natural-law side of the Court's jurisprudence, explains:
On the other hand, ... emphasis in the case law on individual autonomy, moral duty, and human rationality manifests equally strong Kantian influences, just as the more socially oriented strands of constitutional thought may be said to reflect egalitarian theory. These orientations have converged in German constitutional case law to produce an integrated conception of the human person as an individual possessing spiritual autonomy, but whose autonomy in a properly governed society is to be guided by social discipline and practical reasonableness. A strong personalist and communitarian philosophy pervades this conception of the human. ... Mephisto envisions society as more than a collection of individuals moved by self-interest, calculation, or the manipulation of others. The Constitutional Court has never interpreted the human dignity clause as a vindication of autonomous individualism. It defends freedom as individual self-determination but attaches nearly equal weight to the social values of participation, communication, and civility. Human dignity, in the eyes of the Constitutional Court, requires a caring and sharing society marked by understanding and reciprocity among individuals inthe presence of definitive values.[184]
Kommers finds it "[n]eedless to say [that] this theory is also shared by other reputable philosophical traditions in Germany"1[185], and is, on the whole, reminded of "Lincoln's image of a fraternal democracy".[186] Is there anything more one could wish for?
Solemn words indeed, both from the Bundesverfassungsgericht and its scholarly students. However, this gushing account should make the reader, informed by the historical and functional background, prick up her ears. If this were unconditionally true -- why would the people, consisting of all these Kantian and still communitarian individuals, be kept outside the political process?
Indeed, I believe that Professor Kommers and all the other scholars he cites are taken in by the Bundesverfassungsgericht's semantics. To be sure, the Court's discourse about human persons as being ambiguous -- simultaneously autonomous, self-developing, vested with moral rights and community-centered, guided by social discipline -- sounds most alluring. In the light of communitarian critique[187] of liberalism it must seem to the reader of the Court's decisions that the Bundesverfassungsgericht envisages a conception of the human person and of the polity that aims at reconciling both ends of the spectrum. This attempt, it seems at first glance, is successful. One the one hand, according to the Constitutional Court, the core premise of liberal theory is fulfilled. Individuals have moral rights that serve as constraints on government and on others -- constraints that are under the control of the rights holder. They have these rights not on the grounds of some social convention, tradition, dispensation from God, or aggregate common utility, but by virtue of their having some "property" such as moral autonomy and human dignity; this "property" constitutes them as bearers of rights.[188] On the other hand, the Court's discourse takes the wind out of the communitarian critics' sails by denying that the rights-bearing self is atomistic, abstract, unencumbered. Quite on the contrary: the Court itself argues that individuals are situated within a historical and social context, and that they are socialized in a community from which they derive their individual and collective identity. Also, the Court would subscribe to the observation that there are distinct communal duties and virtues.[189]
This, however, touches only the surface of the conflict between liberalism and communitarianism. Naturally, due to the limited space of this paper I cannot, and due to its different topic I do not want to, go into the details of the sophisticated debate.[190] Let me point only to a few antinomies totally unresolved by the Court's narrative. One communitarian claim, for instance, is that there are no duties pertaining to abstract man but only to members. This means that the proper basis of moral theory is the community and its good, not the individual and her rights. Freedom has its original locus, then, not in the isolated individual but in the society. Equally, while the rights-oriented liberal has recourse to universal norms grounded in the universal character of humanity (like dignity or moral autonomy), the communitarian can only see particular norms embedded in shared understandings of specific communities. These antinomies are even seen as being unresolvable.[191] Equally, they define the tension between authority and discourse in Professor Kahn's sense -- another unreconcilable pair that even amounts to a "genuine tragedy". [192]
In this light, the Bundesverfassungsgericht's conception begins to loose its attractiveness. This is even more true if we take into consideration that communitarianism not only in the abstract opposes liberalism's assumptions, but rather significant implications. The more radical version is developed by Professor Kahn.[193] He advances a communitarian model of legitimate political order that completely undermines the legitimacy of all state authority. Political power, instead, is shifted to non-authoritarian discursive communities.
The power of the model of a discursive community rests upon an idea of positive freedom -- a substantive idea with profound political implications. ... For the community of discourse to be the locus of positive freedom, it cannot be limited in advance. ... To be free in this dialogue, citizens must deny the state any privileged place. Authority is one voice, but with no greater privilege than any other. Each of the other models left open the possibility of various characterizations of state authority, but the model of community is incompatible with any idea of state authority. ... [In contrast to this,] law is a structure of authority, and constitutional law of ultimate authority. Law may tolerate much discussion, but it wields the ultimate authority to decide. Legal decisions are binding on the members of the community. Yet those binding decisions do not enter into a real community of discourse with any privileged place. Truth, not authority, is the measure of discourse. Truth, however, is the end, not the beginning of discourse. The possibility of making the self anew, of rejecting all claims of authority, hangs over every true discursive engagement.[194]
It may be consequential to go thus far. It may be constructive, however, to stop somewhere in-between and view the communitarian assault on liberalism less as an all-or-nothing game but rather as leaving some middle ground. Such a solution would try to avoid Paul Kahn's genuine tragedy of constitutional theory and practice drifting apart. Rather, it would advance participatory politics in the sense that the two mutually reflexively related but distinct action units -- operationalised through the distinction between state and bourgeois society (bürgerliche Gesellschaft) -- are overcome or, for a start, weakened in their differentiation.[195] The power that used to be exercised by state authorities and that now, to some degree, is set free, is passed on to community structures -- a society that increasingly organizes itself and regulates itself, a civil society (Zivilgesellschaft). Societal self-organization and self-constitution takes over both power and regulative duties from the statal sphere. The virtues of this concept lies in its compromise:
Beyond the antinomies of state and market, public and private, Gesellschaft and Gemeinschaft, and ... reform and revolution, the idea of the defense and the democratization of civil society is the best way to characterize the really new, common strand of contemporary forms of self-organization and self-constitution.[196]
None of this, evidently, is achieved and aimed at through the Bundesverfassungsgericht's "communitarian" semantics. Instead, the Court firmly remains in its pluralist/ liberalist world. I will offer two different readings of the Court's jurisprudence, both not flattering; the first, however, is the more positive one.
In this understanding, the Bundesverfassungsgericht comes close to Professor Barber's account of the "minimalist" disposition of liberalism.[197] Located between the two extremes of anarchy on the one hand, and realism on the other hand, minimalism tries to find solutions for the (anarchy-oriented) longing for (negative) freedom through limiting government, and the (realism-oriented) lust for power. In this attempt, minimalism has discovered the civil society as a buffer:
Minimalism has sought constantly to reduce the friction that occurs when individual freedom and statist power, when the anarchist and realist dispositions, touch. It calls forth a vision of civil society as an intermediate form of association that ties individuals together noncoercively and that mediates the harsh power relation between atomized individuals and a monolithic government. It envisions in the activities of pluralistic associations and groups and in the noncoercive education of civic men and women alternatives to pure power relations and pure market relations.[198]
This being a laudable goal, it is very doubtful whether the Court succeeds in attaining it -- perhaps even whether it tries to attain it. Although its language is clothed in the discourse of communitarianism, the Court does not go beyond the surface of semantics. First of all, it is not clear whether it is aware of what it is doing, that is whether it really has the construction of an account in mind that formulates the existence of a civil society. I am skeptical because often enough the Court contents itself with repeating the old version of the state - society antinomy without attempting to find some mediator. However, even conceded it does, it does not make a difference. The Court's civil society, if there is one, does not receive any new power from the state sphere. Of course, there are pluralistic associations that function within the political mode of bargain and exchange; but they are not dynamic and have barely changed since 1949 (and if they have, their importance has lessened, such as in the case of the unions). If we allow ourselves to believe that the Court has a civil society in mind, then we have to state, at the same time, that it is paid little attention to. The Bundesverfassungsgericht shows no sign of recognizing that more and more systemic parts of the society press for self-organization, self-management, and, as a consequence, self-determination.[199] The statal and societal spheres remain clearly distinct and opposed in the Court's view of the world; the individuals inhabiting this world are still primarily the autonomous, Kantian bearers of universalistic human rights. Embeddedness in the community only serves the purpose of enhancing this. Professor Barber, in a paragraph that seems to be tailored to the German Constitutional Court, attacks minimalist liberalism in the same vein:
Nevertheless, in minimalism such virtues remain largely instrumental: they are valued less in and for themselves than for the sake of the individualist ends they faithfully serve. The individual may be more comfortable acting in a pluralist, group society than in the natural market or in the theater of power politics, but the virtues of the pluralist society are also ultimately to be assessed exclusively by how they promote enlightened self-interest: by how free the individual is and how well his interests are maintained and advanced. There is nothing supererogatory about liberal tolerance, nothing altruistic about mutual respect, nothing other-regarding about self-restraint, nothing communitarian about pluralism.[200]
Here is the reason why the Bundesverfassungsgericht is not ready to cede power to a civil society. The individual's (enlightened) self-interest being in the foreground, the Court still clings to its underlying notion of Hegelian dichotomy. Individuals may be dependent on and committed to the community[201] -- they are still defined in terms of (negative) freedom and self-interest. If, according to Barber, the community-centeredness does not instill individuals with supererogation or altruism, then the old liberalist conclusion stands firm: the state is the sphere of altruism, and thus has the moral mandate of operationalizing and even setting values.
This is the first reading, and it sounds pretty plausible to me. The second reading is of striking simplicity. It associates "nature" with "free" and "community" with "coercion", acknowledging that governance is not impossible in a vacuum. The body that is to be governed (or, in the negative, coerced) has to be an integrated one -- so anybody who aspires to govern has to draw boundaries to obtain a governable body. The construct of a community, according to these lines, is necessary to exercise power. The Court, hence, is logically obliged to acknowledge a community instead of an anarchistic heap of unencumbered selves in order to legitimize its own power. This reading, to my mind, comes close to a conspiracy theory and is therefore less convincing. However, it allows us a view upon the traditional dilemma of liberal democracy. The natural condition jeopardizes the individual's potential freedom while the state endangers her actual freedom. Liberty cannot survive without political power, but political power extirpates liberty.[202] The Bundesverfassungsgericht -- and here we come full circle -- has chosen a progressivist attitude towards this dilemma by attuning its jurisprudence to an image of man and politics that Professor Barber metaphorically describes as "political zookeeping": "[C]ivil society is an alternative to the "jungle" -- to the war of all against all that defines the state of nature. In that poor and brutish war, the beasts howl in voices made articulate by reason -- for zoos, for cages and trainers, for rules and regulations, for regular feeding times and prudent custodians."[203] The image of man runs along these lines: "Like captured leopards, men are to be admired for their proud individuality and for their unshackled freedom, but they must be caged for their untrustworthiness and antisocial orneriness all the same."[204] And this, of course, has implications for the role of the people in the political process: "Indeed, if the individual is dangerous, the species is deadly. Liberal democracy's sturdiest cages are reserved for the People."[205]
Our expectations, hence, are confirmed. The Bundesverfassungsgericht takes up the communitarian narrative rooted in the socialist or social-democrat strand of the sources of the Basic Law. However, it treats them in an instrumental way, merely supplementing, maybe enhancing the individualistic notion of personhood. Therefore, the concept of civil society appears in an impoverished version (if at all!), and the state is still the sphere of virtue. The image of politics as zookeeping illuminates the Court's self-understanding as custodian; but being deeply attached to narratives of progress and hope[206] it also views itself as an educator -- perhaps as the trainer in the cage. As a consequence, it becomes apparent that the Court's own discourse about the political process as a pluralistic one -- with the political mode consisting of bargaining and exchange, the basic value being liberty, with a legislative institutional bias and a citizen posture being active and fragmented -- is more wishful thinking than reality. Rather, we are dealing with a juridical regime form, the political mode consisting of arbitration and adjudication, the basic value is rights, with an institutional bias towards the judiciary and a deferential citizen posture. The Court's educative goal has neither limits nor ends -- since the individual remains defined through (enlightened) self-interest, it will always have to be state, and within its hierarchy ultimately the Constitutional Court, that realizes virtue.
In medicine, a good diagnosis takes up most of the time. As soon as the doctor is sure about what's wrong with her patient, her work is almost done. In most cases, she just opens her big book[207], and the diagnosis is there. Not that there are any silverbullets to be found in it -- but the choice is limited, and the therapy becomes a question of trial and error within the framework of possibilities that the book provides. Of course, we are coming close to the point where the medical metaphor starts to become shallow -- but now that I have started it I can as well follow up on it and try to squeeze out of it whatever is possible and might more or less fit. What may be useful for my project, thus, is the following: Whether or not a therapy is necessary depends on whether or not a disease was diagnosed. The extent of the therapy (and its urgency) depends on how sick the patient is. Different diseases require different treatments. Now, most of these statements are truisms, both in medicine and in law. My point, however, is that as soon as we have the diagnosis, the therapy is pretty clear too. Much of what is going to follow has already been hinted at in the course of the "diagnostic" analysis. I will be brief, then, to avoid redundancy.
In addition, I will incorporate solutions from stories other than my own, notably the revised story (and here it is definitely time to acknowledge that the medical metaphor is exhausted -- it would probably hurt rather than heal a patient if she was treated with a medicine designed against a different disease).
If the patient is healthy, there is, of course, no need for therapy whatsoever. This is why I was seriously hesitating to write a whole paragraph on therapy according to the conventional story, and make up a headline for it (which, incidentally, is quite a hassle -- making up headlines). However, I then realized that even according to those who neatly distinguish between law and politics there is something wrong with judicial review à la Germany. Perhaps, because law and politics are (from this vantage point) two different stories altogether, advocates of the myth of immaculate truth find something troubling about the Bundesverfassungsgericht. (It was then that I added the words "in general" to the headline of part II.A.) The only reason why it is not troublesome for the tellers of the conventional story that political power accumulates in Karslruhe and metamorphoses into judicial power is because it is legal power, in a double sense: first, it is conferred upon the Court by the Constitution. This in itself is reason enough to respect it.[208] Second, it is legal power, not political -- the metamorphosis (which in other stories takes the blend of ossification, statism etc.) performs a legitimatory function. Law is "higher" than politics. Law is pure science, law is knowledge and truth and incorruptible and lasting. Politics is unscientific, a short-term and everyday project, often corrupted not only by human fallacy but also, quasi inherently, by the selfish interests it has to accommodate. Law and politics -- two distinct spheres, in every respect. However, the Court's jurisprudence has significant implications on the political process. Political reasoning sometimes enters into the courtroom and even finds its way into the Court's decisions. This brings the danger of law being "infected" with the political virus. Furthermore, invalidating laws draws heavy critique from the political system and often from the citizenry. It is not inconceivable that this critique might become so dense and pressing one day that the Court's competence could be curbed, e.g. through constitutional amendment. Finally, legal scholarship is very carefully opening up to interdisciplinarity, undermining the throne of constitutional law through political, sociological, historical, even psychological assumptions. All three tendencies contribute to blurring the boundary between law and politics, and thus weaken the very foundation of the conventional story's convictions.
The answer to all three challenges is the same: judicial self-restraint. Something like a political questions doctrine[209] might take the Justices' minds off political reasoning; it might lead to fewer politically spectacular decisions; and it might help the Court keeping low-key and thus draw less interdisciplinary fire from the academia.
I hardly dare to bore the reader by writing this down: of course I reject this solution. First, there are dogmatic doubts. I will leave open whether or not the political questions doctrine plays a meaningful role in the United States.[210] The German Constitution, however, does not confine judicial review to "cases" and "controversies" (Article III, Section 2 U.S. Constitution) but embraces comprehensive review. Second, it builds on the rigid law/ politics distinction which does not hold. Third, and very important, neither the political questions doctrine nor the urge for judicial self-restraint provide a normative yardstick. On the contrary, to settle with this solution means to concede "opportunistic-decisionistic judicial Kompetenz-Kompetenz"[211] to the Court. It is only an appeal to the professional legal ethics of judges, and leaves the judicial Kompetenz-Kompetenz to the subjective wisdom of an aeropague of judges whose self-control is sufficient and appropriate. In addition, it has turned out that the concept of self-restraint, if it pops up in Bundesverfassungsgericht decisions, has served as a concealed justification of the exact opposite: judicial activism. [212] One positive aspect, however, remains nonetheless: the call for self-restraint at least invites the justices to reflect on their pre-commitments.[213]
In acknowledging that the Bundesverfassungsgericht is indeed a player in the political arena and that the power center may be indeed skewed towards Karlsruhe, the revised story offers normative orientation. It is a different question whether its proponents would want to seriously follow up on them. As we have seen, attacks on the Court's rulings -- the German language has coined the wonderfully ambiguous word "Urteilsschelte"[214] -- serve the purpose of furthering the parties' political goals. In general, the attitude towards the Court thus oscillates between biting criticism and enthusiastic support. Since both can be useful to strengthen a political position, it is a double-edged sword to cut down the Court's competence or to undermine its legitimacy to a significant degree. Therefore, it is not far-fetched to doubt the seriousness of attempts to curb the Court's power. They may be half-hearted (at best) or be political maneuvers in themselves (at worst). However, these doubts shall not be my concern. Rather, I will take the criticism seriously and examine what implications might be flowing from the questions raised by the revised story.
1. Competences
A first (and obvious) response to the deficiencies detected by the revised story is to cut down on the Court's competence. This is a proposal de constitutione ferenda and thus requires a two-thirds majority in Parliament. Although the overwhelming majority of the Court's workload stems from constitutional complaints, and although these complaints give the Court the welcome opportunity of developing their jurisprudence on fundamental rights, the abolition of Verfassungsbeschwerden is unrealistic. As Richard Häußler has recently pointed out, it is the institution of Verfassungsbeschwerden that has contributed, more than anything else, to the Court's good reputation and wide acceptance throughout the citizenry.[215] This is different, however, when it comes to abstract judicial review (abstrakte Normenkontrolle) as provided for in Article 93 (1) No. 2 Basic Law and section 13 No. 6 in connection with sections 76-79 of the Federal Constitutional Court Act. This procedure has repeatedly been (mis)used by parliamentary opposition groups to attain political goals by legal means.[216] The reason might be that --not only in Germany -- the role of the opposition in Parliament is rapidly decreasing.[217] Whether, however, judicial review is a good solution to this problem is a different question. Häuþler thinks so and therefore argues that it is advantageous to accept the exclusively political use of the abstrakte Normenkontrolle in order to boost the opposition's role.[218] Others are doubtful. [219] I join the more skeptical group, convinced that abstract judicial review is surely the wrong therapy. The low number of cases makes it questionable in the first place whether the Court contribute to a strong opposition. Even if we accept that it can -- e.g. because the mere threat of judicial review is sufficient to generate possible pre-effects on the parliamentary majority and government --, then it is important to see the flipside costs. Especially the cases of abstract judicial review, brought before the Court by the politically defeated parliamentary minority, are the spark that sets public opinion on fire, that leaves people with the bad taste in their mouths that something antidemocratic is going on, and that sets off often polemic and not very helpful critique that ultimately undermines not only the Bundesverfassungsgericht itself but also the democratic process as a whole. The parliamentary minority becomes to be seen as a group that cannot accept its defeat in a democratic process and that tries other means to push through its goals. The citizen's confidence in the democratic process is, thus, undermined in a double way: If she agrees with the majority, she must get the impression that parliamentary processes cannot be trusted because their outcomes may be irrelevant. If she agrees with the minority, she must arrive at the same conclusion: parliamentary processes cannot be trusted because they produce outcomes that are unconstitutional, which means (as I pointed out earlier[220]) contrary to the spirit of tolerance, protection of individual and minority rights, legality, predictability, tradition, and, in general virtue. This is, to my mind, too high a price to pay for a therapy that isn't even certain to cure the symptoms.
2. Elections
A second implication of the revised story's critique might be the introduction of elective judiciaries (or at least of an elective Bundesverfassungsgericht) in order to enhance democratic accountability. I will be brief on this point. First, I have already hinted at the ambiguity of accountability.[221] Second, accountability serves to tie decisions to the democratic basis and root them in the people by increasing the accountable actor's responsiveness to social pressure. This is, however, exactly the opposite of what judges and justices should be: responsive to majoritarian pressure. How can they perform their task of protecting minorities if they have to worry about scraping together a majority for the next elections? The models of judicial review that were part of the functional analysis all attribute a decisive legitimatory effect to the fact that judges are independent of majority voting. Professor Croley in his study about the "majoritarian difficulty" of elective judiciaries arrives at the unambiguous conclusion that "the unelected status of the judiciary is exactly what preserves their legitimacy in a democratic regime." He continues:
The desirability of elective judiciaries is therefore open to serious question. How elective judiciaries advance both the majoritarian principle and the protection principle simultaneously is unclear. ... Nor does the institution seem desirable on the grounds that it produces more capable judges; or that it adds democratic legitimacy by creating the exaggerated perception that "the people" really control those who exercise judicial power over them; or that it provides better access to members of groups historically underrepresented in the judiciary. Each of these justifications is either theoretically dubious or empirically groundless, or both. ... Elective judiciaries are illegitimate and should be dismantled forthwith.[222]
Third, it is not as if the Bundesverfassungsgericht operates in an aura of isolated independence and neutrality. It is made up of Justices that usually are associated with one of the major political parties, and some of them even played important roles in the political system (such as state secretaries or even ministers) before they were confirmed; others play important political roles after their term has expired (such as the present President of the Federal Republic, Roman Herzog, who before was President of the Court). Furthermore, there is always the implementation problem[223] which some see as an increasingly important informal channel of judicial accountability: "[T]he federal judiciary is accountable to the majority in the informal but important sense that judicial decisions must generate sufficient support to ensure their execution, awareness of which has doubtlessly shaped the judiciary's decision making profoundly in important periods of history."[224] All in all, I do not think that public election of Justices is a solution to the countermajoritarian difficulty (as identified in the revised story) because it poses too many problems without really solving others.
3. Representational Quotas
As we have seen, representation is ensured in a political sense: the two-thirds majority necessary in the elective chamber ensures that all major political parties have a say as to who will be on the bench. Due to the lack of racial diversity in Germany, at least in comparison to the United States, the claim for more representativity comes up above all in relation to gender representation. Women have always been greatly underrepresented in the Bundesverfassungsgericht. Out of 16 Justices, only one, at most two women have been on the bench since 1951. I believe that the underrepresentation of women (which jumped into the public eye above all in 1993 when the Court struck down a law that liberalized abortion) is a grave deficiency that should be dealt with with utmost seriousness and swiftness. Taking into account the Court's own communitarian discourse it is surprising that this issue comes up so late. (This, of course, is meant ironically. Since the Court denies that values are particular shared understandings in specific communities, it is small wonder that it cannot see the necessity of female presence on the bench.) Even so, the winds of change haven't spared the Bundesverfassungsgericht either, and for the first time in its existence, it is presided over by a woman, Professor Jutta Limbach. This is just a beginning, I hope, and trust that the male/female ratio in Karlsruhe will soon come closer to just middle ground.
4. Methods and Doctrine
Taking the revised story seriously means also to turn to down-to-earth interpretational methods that the Court in its seizure of power (according to this story) employs. I will take up the methods mentioned earlier[225] and will suggest changes in the doctrine. At the same time, let me point out that, to my knowledge, no-one suggests all these changes together, especially no-one who could be associated with the revised story. Yet, I believe them to be adequate responses to the "seizure of power" thesis. In addition, I might as well say already at this point that I subscribe to almost all of these suggestions. I could as well present them in the next section -- "my story" -- and I only deal with them here because I believe that a consequentialist proponent of the revised story should advocate them.
I will turn to three methods of interpretation and doctrinal tools that we have encountered earlier: scope of Article 2 (1) of the Basic Law; the principle of proportionality; and the objective dimension of fundamental rights. I will then add a fourth suggestion, the control of "optimum legislative methodology".
Scope of Article 2 (1)
One important step is to narrow the scope of Article 2 (1) of the Basic Law. While today it covers any conceivable human action that is outside the reach of other "special" fundamental rights, its scope should be cut down to a reasonable extent. It may be a promising approach, for instance, to protect not every imaginable human action but only those that are "constitutive parts of a person's personality".[226] This would necessitate a higher level of significance of the action in question to trigger the protective umbrella of Article 2 (1). Article 2 (1) would regain some graspable contours. It would cease to establish a whole and complete layer of constitutional protection, and it would contribute to de-banalize fundamental rights and the institution of constitutional complaints.[227] A whole new doctrine of Article 2 (1) and of fundamental rights under the Basic Law in general would be possible (and necessary) in order to make sure that the advantages brought about by the reduced scope of the general freedom of action are secured without the level of protected freedom for the citizen being significantly reduced.[228]
Principle of Proportionality
A doctrinal change of equally significant implications -- but nevertheless necessary, I believe -- is to cut down on the pervasiveness of the principle of proportionality. This principle, which is nowhere expressly mentioned in the Basic Law but recognized as a "constitutional principle" rooted in the Rechtsstaatsprinzip", allows the Court to review the reasonableness of governmental actions and legislative decisions by replacing the legislator's values with its own. It is debatable whether this is compatible with the principles of popular sovereignty and democracy. Surely, the application of the principle of proportionality is less objectionable when the constitutional provision that is applicable to the governmental action or law under scrutiny is clear and explicit about its content.[229] However, as soon as it comes to open-textured provisions -- say, above all, Article 2 (1) -- the proportionality principle should be applied with extreme caution. Such a weakening of the hitherto praised principle of proportionality leads, it is true, to less sophisticated standards of judicial review[230], and may be comparable to what students of American constitutional law know as the rational basis test in contrast to the strict scrutinity test. This is, I would argue, nothing to worry about. After all, to take the revised story seriously means to reduce judicial interference with the political process; this, in turn, is only attainable through reduced judicial protection. This does not leave the citizen without protection, of course. First, I am not arguing in favor of a complete renunciation of the principle of proportionality, quite on the contrary. In cases the Basic Law is less open-ended, this principle is one of the major achievements of the Rechtsstaat. Second, it is time to recall that all state authority is bound by the fundamental rights. Article 1 (3) of the Basic Law reads: "The following basic rights shall bind the legislature, the executive, and the judiciary as directly enforceable law." Third, the term "judicial protection" is in itself ambiguous and emanates more awe than it should. Protection that consist of replacing the legislator's values through the Court's values is not purely protective -- it is (also) paternalistic. Emancipation by definition requires to leave the coziness of the protected nest.
Objective Dimension of Fundamental Rights A third suggestion concerns another acclaimed achievement of highly sophisticated constitutional debates, the objective dimension of fundamental rights. To cut back fundamental rights to their subjective-legal dimension, however, is less bloody a revolution as it may seem at first glance. Justice Ernst-Wolfgang Böckenförde -- being one of the few attributing to the objective dimension of rights more problems than virtues -- describes a potential implications as follows:
If the fundamental rights are cut back to subjective rights of freedom in the direct relationship between the citizen and the state, their so-called objective-legal contents will not globally lose all of its orientation effect for the legislator; but the objective-legal contents will remain -- although without judicial enforceability and concretizing determination through the Federal Constitutional Court -- legally binding for the legislator.[231]
Justice Böckenförde, however, adds the question whether "the legislator's pen-strokes" might "still" (in allusion to the Nazi regime) constitute the central threat.[232] In the light of the democratic culture of the German society and its representatives I doubt it. Yet, I agree with Böckenförde that at least potentially, here lies a threat to democracy and the respect for human rights, and I believe that history obliges Germany to be specially vigilant. This applies on the one hand to the to the Court, on the other hand to a strong civil society. I will illuminate both points in my own therapy.
Optimum Legislative Methodology
A final proposal is rooted in the fact that Parliament is the primary agent of the people. As such, Parliament has to meet certain demands, among them, of course, that of a formally correct process of legislation (formelle Verfassungsmäßigkeit). More important than the control of the formality of the process, however, are substantial demands concerning the rationality of the process of legislation during which the legislator has a material look at the subject of regulation.[233] It is conceivable, for example, that the legislator would have the constitutional duty to perform certain tasks and utilize certain methodologies (such as to hold mandatory expert hearings, set up expert commissions, acknowledge relevant facts, exhaust accessible sources of information, and provide a certain level of information to all Members of Parliament) during the legislatory process. The use of these methodologies would be legally binding and reviewable by the Court. Thus, the Bundesverfassungsgericht would have the opportunity of shifting its own emphasis from the review of outcomes of legislatory decision (Ergebniskontrolle) to the process in which the decisions were made (Verhaltenskontrolle).[234] It thus constitutes an institutionalized shift from substance to process -- a shift that today is more imminent than ever, taking into account the increasing amount of risk-regulating decisions under uncertainty. In addition, it incorporates some of the virtues of Professor Ely's approach while avoiding some of its vices (e.g., there is no need to deny that the Basic Law is a highly value-filled document).
I have already said that I agree with much of the revised story -- both its diagnosis and its therapy. For instance, its methodological proposals, its use of enlarged procedural review as an argument to restrict substantial review, and its claim for greater representation of women on the bench in order to enhance the Court's legitimacy are all suggestions I completely subscribe to (which is why I will resist the temptation of going into further details of how to reform German constitutional practice and doctrine). Yet, I am also greatly skeptical and critical vis-à-vis the revised version. I will not again warm up my earlier critical notes as to the inherent incoherency and incredibility of that approach. Rather, my strong doubts concern a deeper flaw which would, I believe, turn out to be detrimental to its basically applaudable project. The (gradual) disempowerment of the Bundesverfassungsgericht envisaged by the revised story is one that is deeply committed to progressivism. We can distinguish between two strands. The first bravely attacks the Court and calls for limiting its powers -- but, since that is already an exhaustive undertaking, does not spell out where the power should go once it is set free. I will not further deal with this strand since the deficiency is obvious. The other strand attempts to cut down the Court's competences in the name of more parliamentary say. The Bundestag, then, would be the institution to gain advantage from a silenced Court. This may sound logical: after all, Parliament is the people's main agent. However, the power remains within the sphere of the state. This, however, means that one symptom may be cured (the Bundesverfassungsgericht does not overly influence the political process any more), but that at the same time the disease will continue to flourish. Why so? The fatal distinction between a virtuous state and an egoistic society remains in place, leaving the main argument for distrusting the people (and the democratic process) well and alive. Public participation remains frowned upon because the notion of a usually badly informed and, by clever manipulation, misdirected public popular energy persists. What's more, the revised scheme of treatment will turn out to be counter-productive. While it does not touch upon the state/society opposition, it removes from the political process a voice that in every respect has to be characterized as undeniably compromising, integrative, often liberal, never extremist, always deliberative. These are features that are not always shared by other state institutions. Sometimes called the 'voice of reason', blessed with the opportunity of a 'sober second thought' away from the heatedly contestedground of party politics, the Bundesverfassungsgericht has not only stirred up conflict, but at least as often settled conflict. Earlier I have pointed out that the myth of immaculate truth -- of which the myth of unencumbered law is an important part -- civilizes the debate and reduces the potential for conflict and unresolvable confrontation. Indeed, legal discourse is much less likely to succumb to temptations of violence than moral discourse.[235] This voice, then, is taken from the public sphere. The political elite remains a ªhuis clos´ -- however, without the often calming interference from Karlsruhe. This sounds hardly desirable. The limitation of the Court, therefore, has to be supplemented by a different vision of how to channel the power that is set free. It will come as no surprise that I argue to entrust it, to a great to degree, to the people, to a strong and mature German civil society. Again, however, dangers are looming, and again it is the progressivist spirit that is threatening to poison my populist enterprise. The danger lies in a managerial purification of the people, along with careful filtering of popular sentiment and energy. It seems to me that some allegedly populist agenda falls into this paternalistic and, eventually, progressivist trap.[236] Professor Balkin objects to such visions:
[O]rdinary citizens might have very good reasons for not being politically energized at certain times, since from their perspective there is considerably more to life than politics -- for example, family, friendships, communal associations, leisure, entertainment, and work. Imposition of a public-issues-centered view of life can itself be a form of elite disparagement of populist sensibility. [237]
The way to avoid the trap is simple: "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."[238] This alone, however, may not be sufficient. After all, respect for the energized people is one thing; a tyrannical majority another. I submit that there has to be some sort of safety net -- at least, Germany owes this to its history. I believe that in this respect, the Bundesverfassungsgericht should play a crucial role. As soon as the energized popular will threatens to infringe upon minorities in way that cannot be tolerated any more, the Court has to step in. However, these limits should not be watched by a tense Court, always on the front edge of its chair. The Court should, indeed, relax and take an attitude as it did as to the protection of human rights in relation to the law of the European Communities. The two famous decisions are called "Solange I" and "Solange II" (solange meaning "as long as") [239] and reduce the Court's role to that of a fire patrol that becomes active only in case of emergency.
Let me come back to the Crucifix decision in the end. It confirms, to my mind, in delighting clarity a number of points I have raised. First, the decision has shown the Court taking it for granted to interfere in matters of tradition, culture, belief, and religion without even thinking twice. The Justices were more than surprised at the public outrage over its decision. Second, the public reaction has demonstrated that the people would not defer to its assigned role any more, which is that of the impure, unstable variable in the political process that needs guidance and education. Third, it leads us a way into the future -- an aspect that has been completely underilluminated in the debate. The Court first published the decision saying that it is unconstitutional "to put up a cross or a crucifix in the rooms of public schools". Two weeks later, after the public outcry, the president of the senate and vice-president of the Court, Justice Henschel, published a statement in which he reformulated the crucial phrase, adding that it was only unconstitutional to put up crosses or crucifixes in public schools "if so ordered by the state".[240] The implication is that crosses and crucifixes can still be put up in public schools -- if the parents and the teachers consent to do so and no-one objects. This is exactly what I have in mind for a suitable role for the Court. Societal arrangements -- self-organization, self-constitution, self-determination -- has priority over state regulation. Only when minority rights are endangered (as would be with persons objecting to the presence of crosses or crucifixes in classrooms of public schools) the Court steps in and clarifies the situation. Justice Henschel's statement has been generally viewed as odd. I believe it holds the key for the Court's future and prudently defines the relationship between the state and the emerging civil society in general.