German Federal Constitutional Court

The sixteen judges of the German Federal Constitutional Court are distributed among two senates of eight judges. In civil rights cases the senates make their decisions in chambers of three judges, if all three judges agree, otherwise and in all other cases by majority vote. If the senates disagree on a legal question arise in both senates, the plenum of all sixteen judges decide.

THE FEDERAL CONSTITUTIONAL COURT:
FIFTY YEARS

On September 7, 2001, Germany’s Federal Constitutional Court celebrated the 50th anniversary of its creation. The occasion was appropriately festive and solemn: festive because the Court has exceeded the fondest hopes of its founders; solemn because the Court has come to be recognized as the mainstay of Germany’s constitutional democracy. Few would have predicted in 1951 that the new tribunal -- among the Basic Law’s most imaginative innovations -- would evolve into one of the world’s most powerful and respected constitutional courts.

The Federal Constitutional Court was designed to be a key player in Germany’s system of constitutional governance. It was given wide-ranging powers to monitor elections, to decide conflicts within and between levels and branches of government and, at the request of the national or a state government, even to declare political parties unconstitutional when they are found to undermine German democracy. Among the most sensitive of its powers -- one that plunges the Court into the center of parliamentary politics -- is its constitutionally mandated authority to review the validity of statutes, immediately after their passage, on the petition of one-third of parliament’s members.

In addition to its political jurisprudence, the Court is also empowered to review laws that arise in the course of ordinary litigation. But its power in this field is exclusive. If, for example, ordinary judges are convinced that a law in a case before them is unconstitutional, the issue of the law’s validity must be referred to the Constitutional Court for final decision. Finally, the Court is empowered to hear the constitutional complaints of ordinary persons who allege a violation of one of their guaranteed rights under the Basic Law. In short, the Court was conceived as no less than the guardian of Germany fundamental law.

In the exercise of its authority, the Constitutional Court has deeply influenced the shape of Germany’s political landscape, reaching deep into the heart of the existing state, guarding its institutions, circumscribing its powers, clarifying its goals and, in some instances, instructing politicians to adopt given courses of action. Indeed, the Court has managed to colonize spheres of law and politics that only the most ardent supporter of judicial review would have thought possible in 1951.

The Court has been at the epicenter of some of the most controversial issues to rock German public life in the last fifty years. They include its assessment of policies related to abortion, university admissions, labor-management relations, collection and storage of census data, public funding of political parties, status of minority parties, radicals in government, election procedures, child allowances, pension rights, nuclear power plants, chemical weapons storage, deployment of troops abroad, religious symbols in the public schools, and any number of procedures and policies arising out of German reunification.

In its fifty-year history, the Court has disposed of 140,000 cases, 120,000 of which have been constitutional complaints of ordinary citizens. This enormous business load is just one indication of the extent to which German citizens have relied on the Court for the protection and defense of their constitutional rights, notwithstanding the fact that 95 percent of these complaints have been rejected. And despite the controversy that has swirled about the Court’s head in recent years, it continues to command the confidence and respect of the German people to a far greater extent than any other branch of government.

It is worth noting, finally, that the jurisprudence of the Federal Constitutional Court rivals that of the United States Supreme Court in both volume and sophistication. In fact, its decisions, even more than those of the Supreme Court, are cited by courts of constitutional review around the world. Equally noteworthy is the fact that Germany’s constitutional court, like the Basic Law itself, has arguably evolved into the world’s leading model of constitutional governance.

Written by
Donald P. Kommers
University of Notre Dame