Comparative Constitutional
Law
German Constitution
Class 8: September 15, 2008
Germany
• Slightly smaller than
Montana
• Population is more
than 80 million
16 current German Länder
German Basic Law
• What is the Basic
Law?
• How was it created?
• TRANSITIONAL –
see Preamble to
Basic law
Preamble to Basic Law
• Originally provided: “Conscious of their
responsibility before God and men, animated by
the resolve to preserve their national and
political unity and to serve the peace of the world
as an equal partner in a united Europe, the
German people of the [various] Länder . . .
Desiring to give a new order to political life for a
transitional period, have enacted, by virtue of
their constituent power, this Basic Law for the
Federal Republic of Germany”
Art. 146
• Originally provided that the Basic Law
would cease to be in force on the day
when all Germans freely adopt a new
constitutions
Herrenchiemsee Convention
• 25 member
committee
• 1 delegate for each
Land
• 14 advisors, mainly
members of SPD or
CDU
• Worked quickly –
Aug. 10-23 1948
Chiemsee – palace is in middle of
Herreninsel
Parliamentary Council, Bonn: Sept
1, 1948
• Held at the Museum
Koenig in Bonn
• 65 delegates (61 men, 4
women; many
experienced politicians
active in the Weimar
Republic)
• Took longer than hoped –
finally got a favorable
vote (10 of 11 Länder) on
May 8, 1949
Ratification
• Compare the ratification of the German
Basic Law with the ratification of the U.S.
Constitution
Reunification
• What happened to the Basic Law on
reunification in 1990?
Art. 23 (now abolished)
• Provided for other parts of Germany to join
FRG
• GDR used this method to accede to the
FRG
• Of course, many East Germans could not
vote on the Basic Law
• Unity: October 3, 1990 – 5 new Länder
Germany
• Example of successful redemocratization
• Has been called a “militant democracy”
• Much concern about history repeating
itself
Fundamental Structural Principles
• What are the fundamental structural
principles that the Basic Law makes clear
are the basis of the German state?
Fundamental Structural Principles
•
•
•
•
Demokratie (Democracy)
Republik (Republic)
Rechtstaat (Law State – i.e. Rule of Law)
Sozialstaat (Social Welfare State) see also
art. 28
• Bundestaat (Federal State)
• Protection of the Environment (Art. 20a
GG)
Basic Law Article 20
• Article 20 [Basic institutional principles; defense of
the constitutional order]
• (1) The Federal Republic of Germany is a democratic
and social federal state.
• (2) All state authority is derived from the people. It shall
be exercised by the people through elections and other
votes and through specific legislative, executive, and
judicial bodies.
• (3) The legislature shall be bound by the constitutional
order, the executive and the judiciary by law and justice.
• (4) All Germans shall have the right to resist any person
seeking to abolish this constitutional order, if no other
remedy is available.
Basic Law - Land Governments
• Article 28 [Federal guarantee of Land constitutions
and of local self-government]
• (1) The constitutional order in the Länder must conform
to the principles of a republican, democratic, and social
state governed by the rule of law, within the meaning of
this Basic Law. In each Land, county, and municipality
the people shall be represented by a body chosen in
general, direct, free, equal, and secret elections. In
county and municipal elections, persons who possess
citizenship in any member state of the European
Community are also eligible to vote and to be elected in
accord with European Community law. In municipalities a
local assembly may take the place of an elected body.
Basic Law – human dignity
• . Basic Rights
• Article 1 [Human dignity]
• (1) Human dignity shall be inviolable. To respect and
protect it shall be 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 applicable
law.
Basic Law Art. 20a
• Article 20a [Protection of the natural
bases of life]
• Mindful also of its responsibility toward
future generations, the state shall protect
the natural bases of life by legislation and,
in accordance with law and justice, by
executive and judicial action, all within the
framework of the constitutional order.
Parteienstaat
• Article 21 [Political parties]
• (1) Political parties shall participate in the formation of
the political will of the people. They may be freely
established. Their internal organization must conform to
democratic principles. They must publicly account for
their assets and for the sources and use of their funds.
• (2) Parties that, by reason of their aims or the behavior
of their adherents, seek to undermine or abolish the free
democratic basic order or to endanger the existence of
the Federal Republic of Germany shall be
unconstitutional. The Federal Constitutional Court shall
rule on the question of unconstitutionality.
• (3) Details shall be regulated by federal laws.
Major political parties?
Major political parties?
•
•
•
•
SDP
CDP/CSU
FDP
All very involved in drafting of the Basic
Law in 1948-1949
• Who is the current Chancellor and what is
his or her political party affiliation?
Current Chancellor: Angela Merkel
• Elected to German
Parliament from
MecklenbergVerpommeln
• CDU – chairman since
2000
• Ossi background
• Protestant
• Nickname “Iron Lady”
(invoking Margaret
Thatcher)
• Became Chancellor in
11/2005 after a deal
following 9/2005 Grand
Coalition CDU/CSU/SPD
Bush is a fan of Chancellor Merkel
Bundespräsident
• Who is the current President of Germany?
What is his political party affiliation?
Bundespräsident
• Horst Köhler: elected
2004 (CDU)
How does the Basic Law
safeguard these structural
principles?
Basic Law art. 79(3)
• Article 79 [Amendment of the Basic Law]
• (3) Amendments to this Basic Law affecting the
division of the Federation into Länder, their
participation on principle in the legislative
process, or the principles laid down in Articles 1
and 20 shall be inadmissible.
Amendment of the Basic Law
• Is it easier or harder than amending the
U.S. and/or Canadian Constitutions?
• Has it been more or less frequently
amended?
Amendment - Basic Law Art. 79
• (1) This Basic Law may be amended only by a law
expressly amending or supplementing its text. In the
case of an international treaty respecting a peace
settlement, the preparation of a peace settlement, or the
phasing out of an occupation regime, or designed to
promote the defense of the Federal Republic, it shall be
sufficient, for the purpose of making clear that the
provisions of this Basic Law do not preclude the
conclusion and entry into force of the treaty, to add
language to the Basic Law that merely makes this
clarification.
• (2) Any such law shall be carried by two thirds of the
Members of the Bundestag and two thirds of the votes of
the Bundesrat.