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«The Beginnings of Germany’s Federal Constitutional Court MARTIN BOROWSKI* Abstract. In this paper I take up aspects of the origins of the ...»

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Ratio Juris. Vol. 16 No. 2 June 2003 (155–86)

The Beginnings of Germany’s

Federal Constitutional Court


Abstract. In this paper I take up aspects of the origins of the Constitutional Court of

the Federal Republic of Germany, with special attention to the reasons for the aggregation of power and to the question of how far constitutional court models from

abroad played a role in the development of the Court. Where the beginnings of the Federal Constitutional Court are concerned, the German tradition and the experience with the lawless regime of the national socialists played a fundamental role. To a certain degree the Austrian model and to a lesser degree that of the United States figured in the deliberations of Germany’s post-War constitutional framers, too.

Perhaps the single most conspicuous characteristic of Germany’s Federal Constitutional Court is its truly extraordinary power.1 Among the Court’s powers of review, three basic variants2 of constitutional review will be emphasized in what follows. The first consists of the Court’s review powers vis-à-vis the organisation of the state, that is, federal-state conflicts, conflicts between the federal government and the Länder, conflicts between Länder (Bund-Länder-Streitigkeit), and disputes between high federal organs (Organstreit). The second is constitutional review in the narrow sense (Normenkontrolle).3 Here the Court examines the constitutionality of the law.

* I am grateful to Stanley L. Paulson for a variety of suggestions on the text.

Whether the thesis that the German Federal Constitutional Court is the most powerful constitutional court in the world, either historically or today (A. Rinken, in Wassermann 1989, arts.

93–4 GG, marginal note 1), is correct, need not be decided here. It suffices, for my present purposes, to note that the Court’s powers, understood both historically and comparatively, are remarkable.

For the distinction among three basic variants, see Friesenhahn 1954, 130–1.

The German concept Normenkontrolle has no counterpart in English. Given that constitutional review in its modern form is to a considerable degree an American invention, and that concrete review, as an important variant of the German Normenkontrolle, is a review power in both systems, the American and the German, I shall use the term “constitutional review in the narrow sense.” This rubric of review powers together with the review powers vis-à-vis the organisation of the state and also vis-à-vis the constitutional complaint I shall term “constitutional review.” © Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

156 Martin Borowski Within this rubric one has occasion to distinguish between


review and concrete review. Where abstract review (abstrakte Normenkontrolle) is concerned, the federal government, the government of a Land, and an aggregate of no fewer than one-third of the members of the Bundestag are all empowered to turn to the Federal Constitutional Court for a decision on the constitutionality of a law, quite apart from any concrete case. Contrariwise, in concrete review (konkrete Normenkontrolle), where a court of ordinary jurisdiction (any court other than the Federal Constitutional Court), deciding a case, is convinced that the applicable federal law or Land law is unconstitutional, it must refer the constitutional question to the Federal Constitutional Court. In short, unlike the situation in jurisdictions with decentralized constitutional review, most prominently in the United States, no court of ordinary jurisdiction has power to declare an applicable law invalid in a concrete case. In other words, the practice in the Federal Republic of Germany is, today, a prominent example of centralised constitutional review.4 Finally, the third basic variant is the constitutional complaint. Any person can claim that an action of the state, a federal law or a Land law, a decision of any court of ordinary jurisdiction or, finally, an administrative action violates one or another of his or her basic rights, as granted in the German Basic Law.

Few democratic constitutional states vest their constitutional court with such extraordinary powers, and one can, of course, take up the pros and cons of a constitutional court with powers of this magnitude. My focus, however, lies elsewhere, namely, on the beginnings of the Federal Constitutional Court in Germany. Along with a presentation of aspects of the history of the Court’s origins as a part of the history of the origins of the Federal Republic of Germany itself, I shall understand the question of the Court’s beginnings as a question addressed to the reasons that lie behind this remarkable aggregation of power on the part of the Constitutional Court.

The question of whether foreign constitutional courts played a role in the history of the origins of the German Federal Constitutional Court, and if so, to what degree, remains an underdeveloped issue in the literature, and, to the extent that positions on the issue have been adumbrated, controversial.

Constitutional review is linked very closely to constitution as such, and it was intended from the beginning in the post-War deliberations that the new German constitution should have a federal constitutional court. Thus, the history of the origins of constitutional review is in large part indistinguishable from the history, in the years 1948–49, of the origins of the Basic Law generally. The understanding of the members of the Constitutional Assembly was rarely formulated explicitly, and one is left with little choice but to draw inferences and engage in conjecture. Although the fundamental decisions in this first phase were taken in the Constituent Assembly, a great many questions On the distinction between decentralized and centralized constitutional review, see Cappelletti 1971, 46–68; see also 1989, 132–46; see also 1966, 1213–24.

© Blackwell Publishing Ltd 2003.

Germany’s Federal Constitutional Court 157 relating to the Basic Law were left open. These questions were answered by statutory enactment, namely, the Federal Constitutional Court Act of 1951 (FCCA). The deliberations leading to the enactment of this statute represent the second phase. Finally, in what might be termed a third phase, amendments to the Basic Law and to the 1951 Federal Constitutional Court Act were introduced. They did not, however, alter the fundamental conception.

I. The Federal Constitutional Court in the Framers’ Deliberations about the Basic Law Roughly two years after Germany’s unconditional surrender at the end of World War II, the conflict between East and West came to a head. The three Western Allies concluded that a German state was to be created in their respective zones of occupation, excluding the Soviet zone. At the Six Powers Conference in London, in the spring of 1948, the United States, Great Britain and France, with the participation of Belgium, Luxemburg and the Netherlands, agreed to commission a Western German constituent assembly that would have as its mandate the fundamentals of a new constitution, in particular, federalism, democracy, and protection of basic rights.5 On the question of the nature and organisation of constitutional constraints, the Western Allies gave no instructions—not then and not later either (Katz 1954, 98;

Kommers 1969, 74; Fronz 1971, 645; Wilms 1999, 168). They commissioned their military governors to convey the “recommendations” of the London Conference to the Presidents of the eleven German Länder in the three Western occupied zones. On 1 July 1948, in Frankfurt,6 the military governors presented the Presidents of the German Länder with corresponding documents, the so-called Frankfurt documents.7 In particular, these documents comprised the authorization to call a constituent assembly no later than 1 September 1948, this with an eye to a referendum in the German Länder. On 8–10 July, the Presidents of the German Länder gathered in Coblenz. A majority feared that the creation of a German state that excluded the Soviet zone of occupation would render more intractable, indeed, permanent the division of Germany. They rejected the creation of a “constitution,” wishing instead to create a mere “organisational statute.” Confirmation by referendum was rejected, too. The assembly that would deliberate on the niceties of the “organisational statute” was not to be a “constituent assembly” but merely a “Parliamentary Council.” Disappointment on the part of the Americans and the British ran deep. After hard negotiations, the Presidents of the German Länder won the agreement of the Western The final communiqué of the conference dates from 6 March 1948 (see Europa-Archiv 1948, 1349), but negotiations were resumed on 20 April. The communiqué of this closing conference dates from 7 June 1948, text in English in Wagner 1975, 1–10; in part in Huber 1951, 196–7; text in German in Wagner 1975, 10–7; see also Europa-Archiv 1948, 1437–9.

Protocol of the conference in German in Wagner 1975, 22–9.

These documents are found in Wagner 1975, 30–6; Huber 1951, 197–200.

–  –  –

Allies, so that only a “Parliamentary Council” (Parlamentarischer Rat) would conduct deliberations on the new constitution, which was to be called the “Basic Law” (Grundgesetz).8

1. The Herrenchiemsee Conference A number of different provisional drafts existed.9 What with the pressure of time,10 effective deliberations in the Parliamentary Council presupposed, as a starting point, a common draft. The Presidents of the German Länder set up a Committee,11 consisting of one commissioner from each of the eleven German Länder along with other experts. They met on an island in Lake Chiemsee, where they deliberated from 10 to 23 August 1948. On the basis of the Frankfurt documents, the conference—whose participants’ expertise is an established fact (Säcker 1987, 269)—worked up a draft of a constitution12 as a guideline for the deliberations that would follow. They succeeded in setting down many of the fundamentals of the forthcoming constitution.13 The draft of the Herrenchiemsee Conference (HChE) comprises, in section viii, arts. 97 to 100, an independent section respecting the Federal Constitutional Court.14 The question of whether an independent constitutional court ought to be established, or whether constitutional review powers should not be assigned instead to a high federal court, was quite explicitly left open (HCh-Rpt. in Bucher 1981, 554, 620). Otto Küster, referring to the Supreme The constituent assembly ought only to be termed a “Parliamentary Council” (Parlamentarischer Rat); acceptance by referendum was no longer seen as mandatory. The American Military Governor, Lucius D. Clay, did not accept the designation of the constitution as Grundgesetz until the presidents of the German Länder altered the literal translation into English in note 5 of their Aide-Mémoire of 22 July 1948 (text in German in Wagner 1975, 270–2) as “Basic Constitutional Law,” in contrast to “Basic Law” which had been used earlier. See Mußgnug 1987, marginal note 31–2; Eckert 2000, 20.

In particular, the draft of the Deutsches Büro für Friedensfragen (Bucher 1981, lii–lvii), the Bayrischer Entwurf eines Grundgesetzes (ibid., lvii–lxiii), the so-called Ellwanger Entwurf (Feldkamp 1999, 49–53) and the two so-called Menzel-Entwürfe (Hirscher 1989, 142–57) were of significance. A number of other drafts existed, too, as a remark by James K. Pollock, the personal consultant of Lucius D. Clay, suggests: “Every leading German has a constitution in his pocket” (Wagner 1975, xxvii).

On the world-wide political situation during these years, see, e.g., Feldkamp 1998, 128–30.

On this committee see Säcker 1983, 6–10; Schuckart 1999, xv–xvii; Bucher 1981, lxiii–cxiv;

Feldkamp 1998, 28–32; in Denninger et al. 2001, Einleitung I, marginal note 19–20; Kommers 1976, 70–2; Kommers 1997, 7–8.

The text of the draft is found in Bucher 1981, 504–630; also, but without the explanatory notes, in Huber 1951, 219–47.

On the landmark character of the draft of the Herrenchiemsee Conference in general see Eckert 2000, 21; Kröger 1989, 1319. On the landmark character concerning constitutional review in particular, see Kommers 1976, 74; K. Stern, in Dolzer and Vogel 2001, art. 93 GG, marginal note 9; Stern 1980, 333; Steinberger 1990, 53; Robbers 1984, marginal note 26; Wengst 1984, 78–9.

This landmark character stems to a certain extent from the partial continuity of personnel as between the Herrenchiemsee Conference and the Parliamentary Council, cf. Mußgnug 1987, marginal note 44.

Report of the Herrenchiemsee Conference (HChC-Rpt.) in Bucher 1981, 599–600; cf. Huber 1951, 235–6.

© Blackwell Publishing Ltd 2003.

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