What is the constitution of America

Constitutions in comparison

Comparative law is a traditional part of law. Nevertheless, their practical importance is often underestimated. It not only serves the educational interests of the scientist, but also enables affirmation and criticism of one's own legal system from the perspective of foreign legal systems. In doing so, it transcends the national narrowing of the discourse on law and justice and extends the horizon for reflection even if solutions from abroad are ultimately not accepted. German constitutional law has always paid special attention to US legal thinking; Again and again scholars and constitutional judges cite the American Constitution and judgments of the U.S. Supreme Court. Comparative law is a focus of Winfried Brugger's work at the Legal Department.

Written constitutions are part of the foundation of modern statehood almost everywhere today. They contain the most important principles of organization and legitimation that all state authorities must adhere to. This includes the separation of powers, basic rights of the citizens against the state and democratic participation rights. The binding of state authority to these principles is checked by the courts, ultimately by a constitutional court. However, this foundation of the modern democratic constitutional state was not so self-evident when the Supreme Court of the United States had to decide the legal dispute between Marbury and Madison in 1803. In this case, the U.S. Supreme Court for the first time four criteria that were to triumphantly advance through Western legal systems in the course of the 19th and 20th centuries: (1) Constitutions should be formulated in writing to guarantee more legal certainty than communities whose political decision-making mechanisms are based on tradition and Exercise based. (2) The constitution takes precedence over the legislative, executive and judicial branches. (3) It is the task of the courts, and ultimately the highest court, to review this constitutional obligation. (4) If an act by the executive or legislature violates the constitution, the highest court can pronounce it unconstitutional. These guidelines can be found in Articles 1, 20, 92 and 93 of the German Basic Law.
In addition to these recognized functions of the constitution and constitutional jurisdiction, there are many other areas of the state decision-making process in which useful comparisons can be made between the classic American constitution and the modern German constitution. Some examples are presented below.

As surprising as it may sound today, in the process of the American constitution in 1787/88 the federalists initially pleaded for a constitution without fundamental rights. Hamilton, Madison and Jay, three of the most important founding fathers, expressed in the Federalist Papers jointly written by them the view that justice and freedom are adequately secured by the separation of powers and representative democracy; Fundamental rights of defense are superfluous, even harmful, since they give the impression that the state's repudiated behavior is actually permitted and must first be prohibited. In addition, it would be distracted from the ultimately decisive safeguarding of the common good, the spirit of freedom in the citizenry, which expresses itself in democratic self-determination: "Here we ... ultimately have to look for the only solid foundation for all our rights." This meant that the federalists could not prevail. Under pressure from the anti-federalists, a catalog of fundamental rights, the Bill of Rights, for which the American Constitution has become famous, was drafted soon after the constitution was adopted. Catalogs of fundamental rights are now an inseparable part of a constitution based on the rule of law. And yet there is a bit of truth in the reference to citizenship, as becomes particularly clear when looking at the principle of democracy.

The preamble to the American Constitution begins with the words "We the People of the United States ... do ordain and establish this Constitution." In doing so, it appeals to the constituent power of the people and the right to democratic self-determination within the framework of "checks and balances" and fundamental rights barriers. How far should the barriers go? The question is not as trivial as it might seem at first glance. Because the American and German constitution contain specific freedom and equality rights as well as general freedom and equality principles: "liberty" and "right to the free development of the personality" or "equal protection of the laws" and "all people are before the law equal". Since almost every social conflict can be formulated as a freedom and equality problem, the question arises: Should constitutional courts have the last word in each of these conflicts, even if the constitution only prescribes a vague principle of personal development and equal treatment, about which the constitutional judges are just as different How do citizens and politicians represent views? The overwhelming but fiercely contested opinion in the USA affirms this question, as does the rather unanimous opinion in Germany. The tension between the principle of democratic self-determination, however, cannot be overlooked when one considers three levels of constitutional authority: (1) the safeguarding of constitutionally specified fundamental rights against legislative interference, (2) safeguarding, perhaps even optimizing, the fairness of the democratic process, and ( 3) the control of the content of all the results of the political process via the appeal also to general postulates of freedom and equality. In the latter area, there is a risk, at least if the examination competences are extensively used, that legislative priorities will be replaced by the rule of judges. If, as the influential, albeit non-ruling school of "representation reinforcing" suggests, one wants to secure and strengthen the competences of the democratic political process and demand more quality there, then one cannot help but curtail constitutional examination competences in area (3) . In Germany, too, there have been some complaints about the country being too close to the judge's state. If the lawsuits are really serious and should gain a larger following, there is no getting around the American discussion on optimizing democratic representation. The more recent German discussion about the inclusion of further state goals in the Basic Law suggests that the directing function of the constitution and constitutional jurisdiction should be increased to the detriment of the political process. So far, with regard to the material orientation of state actions, the Basic Law essentially only contains the welfare state principle, which obliges all state organs to promote social security and social justice, in addition to the articles of fundamental rights. Proposals in the current discussion boil down to including further policy objectives in the Basic Law - such as environmental protection, protection of ethnic minorities, animal welfare, housing provision and calls for solidarity. The integration of the constitution and the ability of politicians to consent should be increased through the inclusion of such state goals; However, one should also always consider the expectation that in the event of a failure of politics the Federal Constitutional Court will intervene and order the right thing. Critics of the enrichment of the Basic Law raise, so to speak, "American" concerns: Politics can never satisfy all legitimate goals at the same time. Instead of the expected increase in integration through the postulation of state goals, general frustration may just as well arise because of the compromises required in achieving goals - constitutional law and constitutional reality diverge. Incorporating the individual goals into the constitution also increases the risk that "enemies of the constitution" suddenly appear on the political stage instead of parties with different concepts of the common good. And the Federal Constitutional Court is - reluctantly or willingly - drawn into conflicts that should perhaps be left to the working conditions of parliamentary work (greater flexibility and more complex problem-processing capacity).

In these discussions an essential difference between the German and the American understanding of politics becomes clear. The longing for the material control of politics through the constitution and its judicial control expresses the German's distrust of the citizen in himself, but at least in the other: We do not trust our own political judgment and the efficiency of our political process for legitimization of the results - at least we do this far less than American citizens, for whom the recourse to "We the People" is a source from which a strong presumption of legitimacy arises for democratically constituted politics, even if the goals of the politics are not specified in the constitutional text are. Are we Germans here burned for eternity during the Nazi era, easily seduced, who rely too heavily on external control rather than on politically expressing and mediating citizenship? Or will we one day be able to confidently say, like the Supreme Court in Twining versus New Jersey in 1908: "It must not be forgotten that in a free representative community nothing is more fundamental than the right of the people to express themselves through their appointed representatives and in accordance with to allow its own will to rule, insofar as it is not specifically bound by constitutional restrictions "? In any case, the alternatives in the definition of the relationship between politics and constitutional jurisdiction, as laid down in the constitutional text, are clearly evident: (1) The ultimate values ​​of the constitution (freedom, equality, justice) are to be seen as fundamentally realized or replaced by the democratic political process. That would be the democracy-maximizing view, according to which constitutional control is reduced to the interpretation of specific fundamental rights and the safeguarding of the fairness of the political process. (2) The substantive constitutional values ​​are on an equal footing with the process values ​​of democracy and the separation of powers. That boils down to equality of politics and constitutional jurisdiction with uncertain mutual demarcation - the question of power is kept in abeyance, so to speak. (3) The final values ​​of the constitution can trump the process values. That is the strongly activist view of constitutional jurisdiction that ultimately prevails both in America and in Germany, although it has even more supporters in Germany than in America: According to it, the courts have a far-reaching, even because of the comprehensive nature of the principles of freedom and equality and justice to almost unlimited control of the content of the results of democratic politics.

At the end of the 1960s there was a widespread debate in the United States about whether the strict abortion bans in most states should be relaxed, not only in the event of a threat to the life of the pregnant woman, but also in the event of rape, serious damage to the Fetus and social emergencies; A deadline regulation was also under discussion. The Supreme Court ended this discussion in 1973 with the decision Roe versus Wade. He granted all pregnant women a far-reaching basic right to abortion, which extends to the viability of the fetus; only then may the member states protect the life of the unborn. Roe versus Wade remains one of the court's most controversial decisions to date. If one disregards the result - which part of the population welcomed enthusiastically, and which attacked others just as vigorously - the problem is that the constitution does not speak of a right to abortion. After the Supreme Court had not let the "life" of the unborn child fall under the constitutional life clause, it used the general right to freedom, which in its view also contained a fundamental right to freedom of abortion. The court had thus advanced to the third level of constitutional jurisdiction mentioned above: it could not invoke any specific textual basis in the constitution; Nor was it about protecting political minorities against oppression - on the contrary, there is much to be said for seeing the unborn as a minority in need of protection; there was also no recognized tradition of freedom of abortion. If all these constitutional and traditional ties do not exist, what is the legitimacy of the court to invent new fundamental rights? In the specification of a general freedom clause about which judges have just as different opinions as citizens and philosophers. Should that be enough for judicial intervention in the political process? In the USA, opinions were and are divided; institutional concerns have often been postponed because the result "was right".

The result could just as easily have turned out differently, as the German abortion ruling of 1975 showed: In it the Federal Constitutional Court declared the deadline regulation planned by the legislature to be unconstitutional. Instead, it ordered an indication model in which abortion is prohibited in principle, but can be justified in the exceptional cases of a medical, criminological, eugenic and social indication. The initial constitutional situation was comparable: the German constitution also contains no express abortion law or abortion ban; it contains a right to life and a general freedom to develop one's personality. Unlike the Supreme Court, the German court subsumed the life of the unborn child under the constitutional right to life and gave it priority over the pregnant woman's interest in unhindered personal development. In practice, the abortion ban developed differently - almost every pregnant woman could have an abortion via the social indication - but it is noteworthy that two supreme courts within the framework of the common western legal tradition and with reference to textually consistent constitutional norms lead to such different ones , dogmatic and downright antagonistic judgments. Obviously there is enough room for different weightings due to incomparable historical and cultural contexts: In Germany the court wanted to interpret the protection of life particularly extensively because of the life-despising practice of the Third Reich; In addition, the state and the constitution are generally expected to be more socially responsible than in America, where the focus is more on the area of ​​social self-organization. There two social models compete more clearly and more extreme than in Germany: the individualistic "Go West Young Man" model with an emphasis on robust self-assertion, and the conservative, even more religious or republican-oriented model of gentle compensation and community ties. If, in such situations of open ideological competition, the constitution does not specify any specific decision-making criteria on the text and the court nevertheless secures decision-making power by specifying vague clauses, then constitutional policy is clearly being pursued: the majority of judges go "community shopping" and seek out themselves the tradition that it considers worthy of support. This can go well and in some cases it has also worked well in the USA - for example in the elimination of legal racial discrimination - but it can also go wrong if a judgment divides the people and fuels existing conflicts by anchoring a fundamental right. It is noteworthy that the two courts have moved closer together over the past 20 years: in 1992 the Supreme Court narrowed the scope of the Roe versus Wade decision. The state can now restrict the freedom to have an abortion as long as it is not a matter of "undue burdens"; Duties to advise on alternatives and to notify parents if minors want to have an abortion are now permissible. The German Constitutional Court moved away from the indication model in 1993 and, roughly speaking, accepted a time limit solution with an obligation to provide advice. The two dishes have thus come much closer together. This is a result of the heated discussion in politics and law, whereby in America the German judgment of 1975 did its part to sharpen the sense of the problem of a far-reaching "basic right to abortion".

Now that it has become clear how important the role of constitutional judges is in interpreting the constitution, it is not surprising that their choice is of particular interest. In Germany, half of them are elected by the Bundestag and half by the Bundesrat. A two-thirds majority is required in both bodies. An electoral committee consisting of twelve members acts on behalf of the Bundestag and is obliged to maintain secrecy about the applicants' personal circumstances. The requirement of a two-thirds majority is widely regarded as a successful regulation because it prevents unilaterally determined candidates from being appointed. However, criticism is leveled at the confidentiality of the deliberations, which should be public and include a questioning of the candidates.Proponents of such a change often rely on the American selection process, where the president suggests a judge but the Senate has to approve. Thanks to his democratic legitimacy, the president is granted a certain amount of leeway - he can present candidates who are more or less "on his line". The extent to which this leeway extends is determined by politics itself: When it comes to questions in which the citizens - and accordingly also the parties - are ideologically divided, the Senate will try to "overturn" the president's candidate if the latter is the takes the "wrong" line. This is what happened when President Ronald Reagan presented Robert Bork, an opponent of the fundamental right to abortion. The "openness" that prevailed in the hearing was so great that the candidate was alternately portrayed as the greatest and most upright lawyer or as the mediocre and most prejudiced lawyer of the century. As many of Bork's opponents admitted after his failure, it was not an exemplary, but rather a deterrent procedure for the appointment of a Supreme Court judge. And the sequel was also not designed to develop a role model function: President George Bush presented a "blank slate", a judge who had so far excelled through almost total restraint in all ideologically laden legal issues. The candidate was accepted by the Senate, but the question arises: Are the ruthless screening and dismantling of ideologically unloved people on the one hand and the presentation of "blank pages", colorless candidates on the other hand, necessarily the two alternatives for the procedure in Germany too required "open appointment of judges"? Or are these just the alternatives in the context of the specifically American robustness in political disputes that would not readily shape an "open" judge appointment procedure in Germany? Does the degree of exploitation of the open procedure perhaps depend on the increase in multicultural disputes, so that the civilization of the appointment of judges that has prevailed in Germany so far decreases to the same extent as the harshness of the political conflict increases? All of these questions first need well-founded answers before the German model of appointing judges is replaced by the American one.

Prof. Dr. Winfried Brugger
LL.M., Legal Seminar, Friedrich-Ebert-Anlage 6-10, 69117 Heidelberg,
Telephone (06221) 54 74 62