The little-known judges on Germany's Constitutional Court exert real influence, not only at home but also abroad
WHEN the principality of Baden merged with two others to form Baden-Wurttemberg in 1951, its former capital, Karlsruhe, was given a consolation prize: the Constitutional Court of the new federal republic. Modestly housed in squat blocks, the court is far from the capital, Berlin. Yet the federal government (and the states) are forever grappling with its edicts. Any toughening of police powers to deal with terrorism seems to provoke objections in Karlsruhe. So do lesser matters, such as whether commuters can deduct transport costs from taxes or whether bars can let smokers light up. "The Constitutional Court is often called the third chamber of the legislature," notes Dieter Grimm, a former judge. "There is something in it."
Now the court is to rule on the European Union's Lisbon treaty, which critics say could put the judges out of business. In February it heard arguments that the treaty would give the EU the attributes of a state without making it democratically accountable, and would sap the court's powers to protect the fundamental rights of Germans. Yet few court-watchers expect the judges to throw Lisbon out. Germany's EU membership is enshrined in the constitution; and the court has long-standing partnerships with the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights in Strasbourg.
Lisbon would tilt the balance of power a bit toward Luxembourg, but not as far as its opponents fear. Judges on the Constitutional Court will not discuss the case, but its vice-president, Andreas Vosskuhle, notes that Germany has often gained influence through the EU. He is right. Moreover, even as the Constitutional Court has been shaping post-war Germany, German jurisprudence has spread to affect Europe and much of the world.
The Constitutional Court is in some people's eyes Germany's most powerful institution. Almost 80% of Germans trust it; less than half have confidence in the federal government and the Bundestag, the lower house. Although a political player, the court is seen to be above politics. Parties nominate judges, but they are usually approved unanimously by the legislature. Unlike America's Supreme Court justices, Germany's seek consensus and seldom write dissenting opinions. Any citizen may bring a constitutional case, an antidote to Nazi notions of justice, and some 6,000 a year do so.
The court is revered partly because Germans' affinity for the rule of law is greater than for democracy, some scholars say. Germany's "constitutional patriotism" resembles the American idea of a nation founded on rights and values. But Germans have a different notion of these. American rights--to bear arms and speak freely, for example--are "small and hard", argues Georg Nolte, a scholar at Humboldt University in Berlin. Germany's, by contrast, are "fat and flexible".
The German constitution, or basic law, which will mark its 60th birthday on May 23rd, is a never-again document. Its first article declares that "human dignity shall be inviolable". It endows Germany with a weak president and strong state governments. Its freedoms do not extend to those who would destroy freedom, which may explain how Holocaust-denial can be a crime despite freedom of speech.
The court has elaborated rights that the constitution's authors never envisaged. The Luth decision of 1958 held that constitutional rights affect citizens' relations not just with the state but also with each other, a judgment so far-reaching as to be termed a "juridical coup d'etat". The court developed a notion of the "duty to protect" basic rights from threats stemming from private action or social forces. In 1983 the court created a right for individuals to control their personal information. Last year, when considering plans to snoop on the computers of suspected terrorists, it found a right to the "integrity of information-technology systems". "German society is over-constitutionalised," observes Donald Kommers, of the University of Notre Dame, in Indiana.
Hans-Jurgen Papier, the court's president, thinks its reputation for activism is exaggerated. Since 1951 it has judged laws, or parts of laws, unconstitutional in just 611 cases, a small fraction of the number it has considered. But it happens enough to keep the government busy. Recently, for example, it told the government to reinstate a tax deduction for commuters who live near their jobs, one of a number of tax rulings that is causing the finance minister heartburn. The court did not say that commuting costs must be tax-deductible, only that treating people who live close to work differently from those who live far away was unconstitutional.
Friction has increased over the balance between freedom and security. On rights it deems absolute, the court is implacable. In 2006 it said the air force could not shoot down a plane commandeered by terrorists even to prevent a greater disaster. The court often tells lawmakers to do a better job of balancing means and ends. A decision striking down a state law allowing investigators to monitor suspects' computers ruled that such powers are permitted only with a judge's warrant and evidence of a grave crime. That was meant to be a warning to the federal government, which was preparing its own law. Wolfgang Schauble, the interior minister, has occasionally struck back; last year he grumbled that some of the judges' musings were "not democratically legitimate". Mr Papier says that such tensions between the court and the executive are not new.
In a world densely populated with rights, every legal act is likely to infringe at least one other. The court uses "proportionality" to decide what can be allowed. The judges subject any infringement to a whole gamut of tests. The answers reveal, for example, where a journalist's right to free speech ends and a citizen's right to privacy begins. Possessing a little cannabis is fine, says proportionality, because law enforcement must be balanced against the right to "free development of personality".
Invented by Prussia in the 18th century to limit the Kaiser's power, proportionality has influenced constitutions from Canada's to South Africa's. Mr Nolte calls it "the prime example of the migration of constitutional ideas". Even America's Supreme Court, which employs its own form of rights-balancing, is taking an interest. Justice Stephen Breyer referred to proportionality in a recent opinion on gun control, provoking scholarly excitement.
In the meshing of the German constitution with European law, proportionality provides a lubricant. Each side is jealous of its prerogatives but eager to avoid confrontation. Since 1974 Karlsruhe has made the transfer of powers to Europe conditional on the protection of Germans' basic rights; if these are infringed, the court insists, it can reclaim them. The ECJ, meanwhile, acts as the "motor of European integration" (and on human-rights issues Strasbourg has the last word). Think of an Alexander Calder mobile rather than a pyramid, suggests Renate Jaeger, the German judge on the human-rights court. Occasionally there are conflicts. Strasbourg told the German court that its pro-paparazzi ruling in a case brought by Princess Caroline of Monaco struck the wrong balance between press freedom and privacy. In February the ECJ upheld an EU directive on data collection, using defence of the single market as justification for what looked to Germans like a public-security matter. That raised hackles in Germany.
Lisbon, if ratified, will change things, by giving the European Commission and the ECJ a bigger role in justice and security affairs. Rainer Nickel of the University of Frankfurt foresees a "quantum leap" in the erosion of the Constitutional Court's powers. But judges are more sanguine. European courts collaborate closely and there is little reason for this to change, whether Lisbon is ratified or not. "It's a shared learning process," Mr Vosskuhle argues.
He will become the court's youngest-ever president when Mr Papier retires next year. Karlsruhe, he thinks, will have its hands full coping with the implications of new technologies such as genetic engineering, with "sustainability issues" like demography and climate change and with growing threats to "equal living conditions" across Germany, another constitutional issue. It seems certain that there will be life after Lisbon.
The Economist (US) 390.8624 (March 28, 2009): p34EU. (1338 words)
