Comparative Constitutional Law

1. Comparative Constitutional Law German Constitution Class 8: September 15, 2008

2. Germany • Slightly smaller than Montana • Population is more than 80 million

3. 16 current German Länder

4. German Basic Law • What is the Basic Law? • How was it created? • TRANSITIONAL – see Preamble to Basic law

5. Preamble to Basic Law • Originally provided: “Conscious of their responsibility before God and men, animated by the resolve to preserve their national and political unity and to serve the peace of the world as an equal partner in a united Europe, the German people of the [various] Länder . . . Desiring to give a new order to political life for a transitional period, have enacted, by virtue of their constituent power, this Basic Law for the Federal Republic of Germany”

6. Art. 146 • Originally provided that the Basic Law would cease to be in force on the day when all Germans freely adopt a new constitutions

7. Herrenchiemsee Convention • 25 member committee • 1 delegate for each Land • 14 advisors, mainly members of SPD or CDU • Worked quickly – Aug. 10-23 1948

8. Chiemsee – palace is in middle of Herreninsel

9. Parliamentary Council, Bonn: Sept 1, 1948 • Held at the Museum Koenig in Bonn • 65 delegates (61 men, 4 women; many experienced politicians active in the Weimar Republic) • Took longer than hoped – finally got a favorable vote (10 of 11 Länder) on May 8, 1949

10. Ratification • Compare the ratification of the German Basic Law with the ratification of the U.S. Constitution

11. Reunification • What happened to the Basic Law on reunification in 1990?

12. Art. 23 (now abolished) • Provided for other parts of Germany to join FRG • GDR used this method to accede to the FRG • Of course, many East Germans could not vote on the Basic Law • Unity: October 3, 1990 – 5 new Länder

13. Germany • Example of successful redemocratization • Has been called a “militant democracy” • Much concern about history repeating itself

14. Fundamental Structural Principles • What are the fundamental structural principles that the Basic Law makes clear are the basis of the German state?

15. Fundamental Structural Principles • Demokratie (Democracy) • Republik (Republic) • Rechtstaat (Law State – i.e. Rule of Law) • Sozialstaat (Social Welfare State) see also art. 28 • Bundestaat (Federal State) • Protection of the Environment (Art. 20a GG)

16. Basic Law Article 20 • Article 20 [Basic institutional principles; defense of the constitutional order] • (1) The Federal Republic of Germany is a democratic and social federal state. • (2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies. • (3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. • (4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.

17. Basic Law - Land Governments • Article 28 [Federal guarantee of Land constitutions and of local self-government] • (1) The constitutional order in the Länder must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county, and municipality the people shall be represented by a body chosen in general, direct, free, equal, and secret elections. In county and municipal elections, persons who possess citizenship in any member state of the European Community are also eligible to vote and to be elected in accord with European Community law. In municipalities a local assembly may take the place of an elected body.

18. Basic Law – human dignity • . Basic Rights • Article 1 [Human dignity] • (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. • (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. • (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.

19. Basic Law Art. 20a • Article 20a [Protection of the natural bases of life] • Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

20. Parteienstaat • Article 21 [Political parties] • (1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds. • (2) Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality. • (3) Details shall be regulated by federal laws.

21. Major political parties?

22. Major political parties? • SDP • CDP/CSU • FDP • All very involved in drafting of the Basic Law in 1948-1949 • Who is the current Chancellor and what is his or her political party affiliation?

23. Current Chancellor: Angela Merkel • Elected to German Parliament from Mecklenberg-Verpommeln • CDU – chairman since 2000 • Ossi background • Protestant • Nickname “Iron Lady” (invoking Margaret Thatcher) • Became Chancellor in 11/2005 after a deal following 9/2005 Grand Coalition CDU/CSU/SPD

24. Bush is a fan of Chancellor Merkel

25. Bundespräsident • Who is the current President of Germany? What is his political party affiliation?

26. Bundespräsident • Horst Köhler: elected 2004 (CDU)

27. How does the Basic Law safeguard these structural principles?

28. Basic Law art. 79(3) • Article 79 [Amendment of the Basic Law] • (3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

29. Amendment of the Basic Law • Is it easier or harder than amending the U.S. and/or Canadian Constitutions? • Has it been more or less frequently amended?

30. Amendment - Basic Law Art. 79 • (1) This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty respecting a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defense of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification. • (2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.