Introduction: Constitutional Resilience and the German Grundgesetz

Verfassungsblog, 2018

Kriszta Kovács, Mattias Kumm, Max Steinbeis and Gábor Attila Tóth -- Contemporary authoritarianism, while not having entirely abandoned the aims and methods of its ancestors, has been undergoing a reinvention in recent years. It no longer attacks democracy and the rule of law upfront but instead tries to adopt the language and even (at least nominally) the institutions of democratic constitutionalism to promote its autocratic aims from within. The two EU Member States where this new-school authoritarianism is most advanced are Hungary and Poland: Popular elections are being held; frantic law-making is taking place; constitutional and other courts keep handing down judgments – but each of these democratic and rule of law institutions have been successfully turned into tools of a self-proclaimed, rawly majoritarian “will of the people“. Populist authoritarian leaders claim exclusive moral representation of the people to undercut the role of the legislature, judiciary and other democratic institutions. Therefore, rejecting political pluralism and anti-constitutionalism differentiate populist authoritarians from democrats.

International Journal of Constitutional Law, 2016

ICL Journal, 2013

Federal Dynamics, 2013

One of the oldest federalist systems, Germany offers itself as a case study for long-term developments in federalism. Drawing on a burgeoning literature on institutional continuity and change we investigate the development of a key institution of German federalism, the Federal Council (Bundesrat) from the foundation of the German Reich until today. Counter to claims that institutional change occurs mainly during "critical junctures," the Federal Council has shown remarkable resilience: It persisted through World War I and the 1919 revolution and the writing of the centralist Weimar constitution. Dismantled in 1934, it returned in 1949 after years of dictatorship, war, and military occupation. Counter to an emphasis on institutional stability in "settled" times in earlier literature, the role of the Bundesrat has changed significantly over the last 60 years. Initially representing the interests of federal states, it has gradually developed into a powerful second chamber dominated by national-level politics. 1 We thank the participants in the Darmstadt workshop, and especially Fritz Scharpf, Jörg Broschek, and Arthur Benz, for extremely helpful comments on this chapter. An earlier version of this paper was presented at Syracuse University, where comments by Pablo Beramendi in particular proved invaluable to improving the overall argument.

Italian Journal of Public Law IJPL, 2021

The article offers a critical analysis of the German Constitutional Court's decision of 15 April 2021 on the law ratifying the Own Resources of the European Union Decision. Two central problems are highlighted. The first has institutional implications: the case at issue not only highlights a potential conflict between the European institutions and a national court but also an ongoing conflict between two constitutional bodies of the German State, in which one-the BVG-appears to challenge (or at least check the actions of) the other, namely the Bundestag, for exercising its authority in breach of the fundamental Constitutional norms protecting citizens' rights and national identity. The second regards the two opposing visions of Europe that have always been in dialectical contrast on this point, specifically, an ever-closer union between the peoples of Europe on the one hand and an expanding but less cohesive one on the other. Lastly, the article suggests some lessons from the past, recalling how the League of Nations rescued Austria in the aftermath of World War I.

Originally published in VERITAS MAGAZINE Constitutional Abnormalities, Deviations and obvious high level Lawlessness in Germany presents an overview of breaches of law through the post war system in Germany. It also shows the abuse of power through the post war parties in Germany and their unconstitutional behavior not to allow for a National Assembly and introduce a Constitution during the unification process of 1990. The utter lawlessness of Chancellor Merkel's import of third party migrants is also dealt with and the relevant German laws are mentioned in translated form. EU law, German constitutional law and German penal law have visible been broken in the process.

The story told by the constitutional conversation which anticipated the Constitutional Convention and by the Constitutional Treaty itself, is a story of defensive, under-ambitious constitutionalism: the declarative commitment produced by the process goes to painstaking lengths to portray itself as neither declaratory nor committed, but as a tentative construction which seeks on the one hand to entrench that to which there can be no constitutional commitment, and on the other hand to compromise on everything, including the very idea of constitutionalism. In this moment of failure, we have the chance to see that the constitutional vision which inspired the Constitutional Treaty was at once fantastical and self-effacing because it is a constructed and constructive project through which organic and trenchant positions of agreements and disagreements are moderated and appeased to the point of apathetic agonism. We need to be much more realistic than that and much more courageous than that if we are to engage in a process of European constitutionalism. If the crisis precipitated by the “ratification failure” helps us to see this, as I think it does, then that is an important kind of constitutional success. The constitutional vision proposed by this article is a constitutionalism which must be and see itself as being in an asymptotic relationship with the transcendent goals of the particular community. Because, I argue, it is only in this kind of “committed constitutionalism” that constitutional possibility can be harnessed: it is only then that the constitutional process can have direction or be transparent and democratic in very basic ways. And it is only then that organic agreements and disagreements can be finally, actually important. The essence of the “committed constitutionalism” concept is no more and no less than that the community which seeks self-consciously to make its common good the common ambition, must do so in a way that which displays its lack of indifference to the possibility that that common good has transcendent aspects: aspects which are beyond its creation, beyond its understanding, beyond its control.

De rebus divinis et humanis. Essays in honour of Jan Hallebeek, 2019

2021

This paper questions the theoretical merits and constitutional validity of the "Rechtsgutslehre" (doctrine of the protection of legal goods), a widely held doctrine about the limits of legitimate criminalization in Germany and some other jurisdictions. The immediate cause for this reassessment is a recent decision of the German constitutional court which upheld the German incest prohibition and simultaneously rejected the traditional "Rechtsgutslehre" as constitutionally irrelevant, thereby stirring up considerable controversy among academic criminal lawyers. The paper tries to show why the court's view is correct by pointing out the main deficiencies of the doctrine and what criteria a better theory must fulfil.

Global Constitutionalism, 2018

What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigréscholarsémigréscholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.