Comparative Constitutional Law

Class 9 September 17 2008The German Federal Constitutional Court

More on Amendment

• Article 79• Very easy to amend the Basic Law; done

many times

Basic Rights

• BASIC RIGHTS- Grundrechte• What are basic rights and where are they

found in the Basic Law?

Basic Rights• BASIC RIGHTS- Grundrechte• What are basic rights and where are they found

in the Basic Law?• They are rules protecting against unlawful acts

or omissions by the state. They ensure that human rights are respected.

• The main basic rights are in Arts 1-19GG though there are also some grundrechtsgleiche Rechte, e.g. Art. 38, 33 (political participation), 103, 104 GG (rights of fair trial, due process)

GG: Language of Duties as well as rights

• Duties on state• Duties on individuals

Limitations• Can the Basic Rights Be Restricted or Are They

Absolute?• See Art. 19(1) which requires that any restrictions be

pursuant to a generally applicable law, and also provides judicial recourse for violations of the Basic Law.

• Some specific limitations in rights e.g. 8(1) right to assemble ‘peacefully’

• Art 18 provides that certain basic rights can be abused and forfeited (Art. 5(1), and (3), Art. 8, Art. 9, Art. 10, Art. 14, Art. 16(a)) if the Federal Constitutional Court declares the forefeiture temporary or permanent.

• Principle of proportionality

Bundestag: As 38-48 GG• Highest constitutional organ in Germany and one of 2

chambers of Parliament.• Legislative body directly elected by the German people• 614 Representatives now: they serve a 4 year term• The electoral system is a combination of proportional

representation and direct election – this mixed system was designed to ensure that there are not too many minority parties in the Bundestag, because situation this had assisted in the rise of National Socialism in the Weimar Republic.

• Mixed member proportional system: Electors cast 2 votes: one for member from his/her constituency, and the second for the Land list (majority/proportional voting) 299 constituency 299 party 16 overhang

• Elects Chancellor (Arts. 63, 67 and 68 GG)

Bundestag: last election Sept 18, 2005

Upper House of German Parliament: Bundesrat As 50-53

GG• What does it do? Compare it to the

Australian, Canadian, and United States Senates

GG: Language of Duties as well as rights

• Duties on state• Duties on individuals

Bundesverfassungsgericht (Federal Constitutional Court)

• What is its sole task? (Kelsen model)• Where is it located? Located in Karlsruhe,

purposely apart from other organs of government

Bundesverfassungsgericht (Federal Constitutional Court)

• Located in Karlsruhe, purposely apart from other organs of government – SW Germany, near French border, in Baden-Württenberg (Stuttgart is capital city)

Types of dispute• What types of matters can the FCC

hear? Compare to the U.S. and Canada

Types of disputes (A. 93)• Constitutional Complaints• Abstract Judicial Review (Land govt, federal

govt, or 1/3 Bundestag members)• Concrete Judicial Review (lower courts)• Federal sep. of powers or State/Federal

Dispute• Federal Election Scrutiny• Impeachment• Prohibitions on political parties (e.g. KPD

(1956))

Workload

• Compare to U.S., Canada,

Decisions

Explain the role of the rapporteur (Berichterstatter) What is a votum?

What is the role of law clerks (wissenschaftliche Mitarbeiter) in the FCC?

How are final opinions created? Are there dissents?

Jurisdiction

• Compulsory: contrast with U.S., Canada,

Judges A 94

• How many judges on the FCC? • How are judges chosen?• How long does a FCC judge serve for?• What qualifications and experience are

required/typical?• Compare to U.S., Canada

First Senate: FCC

First Senate• Hans-Jürgen Papier (President of Court, Chairman of

Senate) 2/1998-2/2010 12 year term b. 1943 CDU/CSU• Michael Eichberger 4/2006-4/2018 (12 year term) b. 1953

CDU/CSU• Wilhelm Schluckebier 10/2006 - 11/2017 (retirement) b. 1949• Ferdinand Kirchhof 10/2007 - 6/2018 (retirement) b. 1950

CDU/CSU• Christine Hohmann-Dennhardt 1/1999-1/2011 (12 year term)

b. 1950 SPD• Brun-Otto Bryde 1/2001-1/2011 (retirement) b. 1943

Alliance90/The Greens• Reinhard Gaier 11/2004-10/2016 (retirement) b. 1954 SPD• Johannes Masing 4/2008-4/2020 (12 year term) b. 1959 SPD

Second Senate

Second SenateAndreas Voßkuhle Vice-President of the Court, Chairman of

the Senate) 5/2008 - 5/2020 (12-year term) b. 1963 SPDSiegfried Broß 9/1998 - 9/2010 (12-year term) b. 1946 SPDLerke Osterloh 10/1998 - 10/2010 (12-year term) b. 1944 SPDUdo Di Fabio 12/1999 - 12/2011 (12-year term) b. 1954

CDU/CSU Rudolf Mellinghof 1/2001 - 1/2013 (12-year term) b. 1954

(CDU/CSU) Gertrude Lubbe-Wolff 4/2002 - 4/2014 (12-year term) b. 1953

SPD Michael Gerhardt 7/2003 - 7/2015 (12-year term) b. 1948 SPDHerbert Landau 10/2005 - 4/2016 (retirement) b. 1948

CDU/CSU

Which U.S. Supreme Court justices would be eligible to sit on the FCC?

Which U.S. Supreme Court justices would be eligible to sit on the FCC?• Justice Alito• Justice Roberts