DE MO C R AC Y ’ S GUA R DI A NS

Democracy’s Guardians
A History of the German Federal Constitutional Court
1951–2001

J US T I N C OL L I NG S
Brigham Young University

1
 1
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 For Lia
‘… because you are to me the chief woman in the world—the throned lady whose
colours I carry between my heart and my armor.’
—Daniel Deronda
 Acknowledgements

This book began as a dissertation submitted to the history department of Yale University.
Perhaps someone, somewhere, sometime has had as fine a dissertation committee as I, but
I rather doubt it. Adam Tooze, my advisor, has been an inexhaustible fount of encourage-
ment, energy, and ideas. For nearly a decade, Bruce Ackerman has been a consummate
teacher and mentor, forever pushing me to do better and to think bigger. Jay Winter is
an exquisite gentleman, a magnificent teacher, and a warm human being—a friend and
guide since my first day of graduate school. Dieter Grimm has been wondrously kind to
an American interloper writing about the Court he once served so ably. All four are giants
in their fields—powerful thinkers, lucid writers, captivating teachers, committed citizens.
They have been models for me as well as mentors. I hope, in my scholarly life, to repay them
by emulation.
This project was interrupted for a year while I worked as a law clerk for the Honorable
Guido Calabresi, another supreme mentor and one of the truly great ones of the earth. My
co-clerks, Farah Peterson and Brian Soucek, blessed me with their wisdom, friendship, and
encouragement. This book, and indeed my whole life, is richer for that experience.
Some of the historical material in Chapter 1 appeared previously in German in an essay
called ‘Gerhard Leibholz und der Status des Bundesverfassungsgerichts. Karriere eines
Berichts und seines Berichterstatters,’ in a collection edited by Anna-Bettina Kaiser and
entitled Der Parteienstaat. Zum Staatsverstӓndnis von Gerhard Leibholz (Nomos 2013).
I thank the Nomos publishing house for permission to reproduce that material here.
I wish to thank the gracious and gifted archivists and librarians of the Staatsbibliothek
zu Berlin, the Bundesarchiv in Koblenz, the Friedrich-Ebert-Stiftung in Bonn, the
Hans-Seidel-Stiftung in Munich, and the Landesarchiv Baden-Württemberg in Stuttgart.
The Fox International Fellowship, under the aegis of the MacMillan Center at Yale, gener-
ously sponsored my research in Germany during the 2011–12 academic year. I also wish
to thank Frau Marianne Leibholz for permission to examine the personal papers of her
father, Justice Gerhard Leibholz. Galen Fletcher, Kory Staheli, Dianne Davenport, Dennis
Sears, and other librarians at BYU Law School have been skilled and supportive. Adam Ott,
Janet Lawrence, Alexandra Thomas Sandvik, Amy West, and Whitney Nelson provided
invaluable help as I prepared the manuscript for publication. Several colleagues at BYU
read parts of this book and gave helpful feedback. Donald Kommers, the dean of German
constitutional studies, graciously read and responded to the entire manuscript. Mitchel
Lasser, my friend and former teacher, deserves recognition both for inspiring me to become
a comparative constitutionalist and for helping to get this book published.
Alex Flach and Elinor Shields of Oxford University Press have been gracious and helpful
at every step of the publication process. Ambiga Jayakumar and others have done excep-
tional copy-editorial and production work.
My largest thanks go to my family. Our daughters, Julia, Elisabeth, and Katharine,
endured this project patiently from beginning to end. Julia and Eli even put up with a year
in German schools while I did the bulk of the research and writing. Abdiel and Gwyndelin
joined our family while my dissertation was becoming a book. I’ve been asked many times
how I survived law school, graduate school, the job market, and my first year of teaching
with so many small children. In fact, I could never have survived without them. On my
darkest days they gave me a hero’s welcome when I came home. They have stirred my soul
viii Acknowledgements

with their childlike belief that their daddy could do anything—even write the history of the
German Constitutional Court.
I have neither the space nor the power to thank adequately my wife, Lia. I hope my life can
be my gratitude. For now, she will have to settle for the dedication of this book, which, like
its author, would be nothing at all without her.
 Contents

Table of Cases xi
Prologue: The View from 1949 xv
Introduction xxix

1. Consolidation, 1951–1959 1
Introduction 1
I. Institutional Independence 5
II. Judicial Politics 14
III. Judicial Supremacy and the Politics of the Past 28
IV. Militant Democracy and Its Discontents 38
V. The Quiet Birth of Fundamental Rights 49
Conclusion 61

2. Confidence, 1959–1971 63
Introduction 63
I. Adenauer’s Last Stand 67
II. The Party State 80
III. The State of Exception 98
Conclusion 103

3. Confrontation, 1971–1982 109

Introduction 109
I. Departure of the Giants 114
II. Fundamental Rights 117
III. Political Justice 126
IV. Changing of the Guard 164
V. Crisis 167
Conclusion 180

4. Continuity, 1982–1990 183

Introduction 183
I. High (Constitutional) Politics 185
II. Fundamental Rights in Shades of Green 207
III. The Largest Turnover in the Court’s History 217
IV. The German Question on the Eve of Reunification 219

5. Karlsruhe Republic, 1990–2001 223

Introduction 223
I. The German Question 231
II. Bio-Politics and Social Policy 248
III. Freedom of Conscience and Expression 256
IV. Germany and the World 274
Conclusion 284
x Contents

Epilogue: The View from Europe 291

I. The Lisbon Judgment 292
II. The Watchdog Begins to Growl 298
III. Final Reflections 301

Selected Bibliography 307

Index 323
 Table of Cases

F E DE R A L C ONST I T U T IONA L C OU RT

1 BVerfGE 1 (1951). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . 5
1 BVerfGE 14 (1951) (Southwest State). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . 5, 33
1 BVerfGE 117 (1952). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 246
1 BVerfGE 167 (1952). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 31
1 BVerfGE 208 (1952) (7.5% hurdle) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 92
1 BVerfGE 351 (1951) (Petersberg Treaty) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 15
1 BVerfGE 372 (1951) (German-French Economic Agreement). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 15
1 BVerfGE 396 (1952) (Germany Treaty). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . 15
2 BVerfGE 1 (1952) (SRP Party Ban). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 25, 38–40, 92
2 BVerfGE 79 (1952) (EDC Advisory Opinion I) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . 21
2 BVerfGE 105 (1952) (EDC Advisory Opinion II). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . 31
2 BVerfGE 143 (1953) (European Defence Treaty). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . 23
2 BVerfGE 237 (1953). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 31
2 BVerfGE 347 (1953). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 27
3 BVerfGE 58 (1953) (Civil Servants) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . 29–38, 147, 235
3 BVerfGE 225 (1953) (Gender Equality I). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . 52, 54, 255
4 BVerfGE 27 (1954). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 92
4 BVerfGE 144 (1955). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 162
4 BVerfGE 157 (1955) (Saar Statute) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 27
4 BVerfGE 358 (1955). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 34
5 BVerfGE 85 (1956) (Communist Party Ban). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . 43, 54, 92
6 BVerfGE 32 (1957) (Elfes) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . xxxii, 50, 54, 62
6 BVerfGE 55 (1957). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . 57, 153
6 BVerfGE 84 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6 BVerfGE 222 (1957) (Gestapo) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . 37
6 BVerfGE 290 (1957) (Washington Agreement). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . 27
6 BVerfGE 367 (1957) (Reich Concordat). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 92
6 BVerfGE 389 (1956) (Homosexuals) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . 51, 53, 122
7 BVerfGE 198 (1958) (Lüth) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . xxxii, 54–61, 62–64, 87, 126, 209, 272
7 BVerfGE 377 (1958) (Pharmacy). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . 60
8 BVerfGE 51 1. (1958) (Party Finance I). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 91, 94
8 BVerfGE 104 (1958) (Atomic Plebiscite I). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 47
8 BVerfGE 122 (1958) (Atomic Plebiscite II). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . 47
10 BVerfGE 59 (1959) (Gender Equality II). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . 53, 255
10 BVerfGE 118 (1959). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 72
11 BVerfGE 239 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
12 BVerfGE 36 (1960) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 71
12 BVerfGE 205 (1961) (Television I). . . . . . . . . . . . . . . . . 68–80, 85, 103, 106–107, 122 n69, 157, 170, 183, 287
12 BVerfGE 276 1. (1961). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . 92, 94
17 BVerfGE 337 (1964). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . 132
18 BVerfGE 34 (1964) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 93
20 BVerfGE 9 (1966) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 93
20 BVerfGE 56 (1966) (Party Finance II A). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . 90–98, 106, 140, 168
20 BVerfGE 119 (1966) (Party Finance II B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90–98
20 BVerfGE 134 (1966) (Party Finance II C). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . 90–98
xii Table of Cases

20 BVerfGE 150 (1966) (Public Assembly Law). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

20 BVerfGE 162 (1966) (Spiegel Affair). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80–82, 85–90, 101, 215
23 BVerfGE 98 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
24 BVerfGE 300 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
25 BVerfGE 167 (1969) (Nonmarital children). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
25 BVerfGE 269 (1969) (statute of limitations for Nazi crimes). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
30 BVerfGE 1 (1970) (Emergency Laws). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100–03, 106–07, 212, 214
30 BVerfGE 173 (1971) (Mephisto). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118–22, 124
30 BVerfGE 292 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
31 BVerfGE 145 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
32 BVerfGE 54 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
32 BVerfGE 157 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
33 BVerfGE 1 (1972) (Rights of Prisoners). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124–25, 158
33 BVerfGE 125 (1972) (Medical Licensing). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125–26, 158
33 BVerfGE 195 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
33 BVerfGE 232 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
33 BVerfGE 303 (1972) (Numerus Clausus). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127–30, 132, 134, 158
34 BVerfGE 160 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
34 BVerfGE 341 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
35 BVerfGE 79 (1973) (university governance). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130–34, 155, 157 n321, 158
35 BVerfGE 193 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
35 BVerfGE 202 (1973) (Lebach Murders). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122–24
35 BVerfGE 246 (1973) (Basic Treaty Injunction I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
35 BVerfGE 257 (1973) (Basic Treaty Injunction II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
35 BVerfGE 366 (1973) (Crucifix in the Courtroom). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
36 BVerfGE 1 (1973) (Basic Treaty). . . . . . . . . . . . . . . . . . . 134–44, 148, 157 n321, 178, 205, 220–21, 236, 280
37 BVerfGE 84 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
37 BVerfGE 271 (1974) (Solange I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144–48, 151, 205–207, 280, 282
37 BVerfGE 363 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
38 BVerfGE 326 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
39 BVerfGE 1 (1975) (Abortion I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148–58, 161, 166, 204, 248, 251
39 BVerfGE 334 (1975) (Radicals in Public Service). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158–61
40 BVerfGE 141 (1975) (Eastern Treaties) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134–36
40 BVerfGE 296 (1975) (Parliamentary Pay). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161–64, 167, 171, 176
41 BVerfGE 399 (1976) (Lump Sum Campaign Finance) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 168
44 BVerfGE 125 (1977) (Government Public Relations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167–71
46 BVerfGE 160 (1977) (Schleyer). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171–73
48 BVerfGE 27 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
48 BVerfGE 127 (1978) (Conscientious Objection Reform) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173–74
49 BVerfGE 286 (1978) (Transsexuals I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
50 BVerfGE 290 (1979) (Co-determination). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxiv, 177–81, 184
51 BVerfGE 222 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
52 BVerfGE 63 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
53 BVerfGE 224 (1980) (No-fault divorce). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
53 BVerfGE 257 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
58 BVerfGE 300 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
60 BVerfGE 123 (1982) (Young Transsexuals). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
62 BVerfGE 1 (1983) (Bundestag Dissolution I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186–91, 194, 211
64 BVerfGE 67 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
65 BVerfGE 1 (1983) (Census) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxv, 192–97, 203, 212
 Table of Cases xiii

66 BVerfGE 39 (1983) (Pershing Injunction). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

67 BVerfGE 100 (1984) (Flick Affair) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199–202, 211
68 BVerfGE 1 (1984) (Pershing Missiles). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202–05, 208, 211
69 BVerfGE 1 (1985) (Conscientious Objection II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211–12
69 BVerfGE 315 (1985) (Brokdorf) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208–11, 214, 259
71 BVerfGE 108 (1985) (‘Atomic Energy? Nein, Danke’). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
71 BVerfGE 354 (1986) (Minorities on Parliamentary Committees) . . . . . . . . . . . . . . . . . . . . . . . . . . . 213–14
72 BVerfGE 330 (1986) (Financial Equalization I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
73 BVerfGE 40 3. (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
73 BVerfGE 206 (1986) (Sit-in Blockade I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214–15, 260
73 BVerfGE 339 (1986) (Solange II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205–07, 282
77 BVerfGE 137 (1987) (Teso) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219–22
80 BVerfGE 188 (1989) (Wüppesahl) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215–17
81 BVerfGE 278 (1990) (Federal Flag). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257–58
81 BVerfGE 298 (1990) (National Anthem). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257–58
82 BVerfGE 322 (1990) (First Pan-German Election) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231–33
83 BVerfGE 37 (1990) (Foreign Resident Suffrage I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233–34
83 BVerfGE 60 (1990) (Foreign Resident Suffrage II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233–34
84 BVerfGE 9 (1991) (Marital Surname). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254–55
84 BVerfGE 90 (1991) (Soviet ‘Land Reform’ I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237–40
84 BVerfGE 133 (1991) (GDR Civil Servants) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234–37
84 BVerfGE 203 (1991) (Republikaner). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258–59
85 BVerfGE 191 (1992) (Nocturnal Labour Ban) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
85 BVerfGE 264 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
86 BVerfGE 148 (1992) (Financial Equalization II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
86 BVerfGE 390 (1992) (Abortion Injunction I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
88 BVerfGE 83 (1993) (Abortion Injunction II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
88 BVerfGE 87 (1993) (Transsexuals II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255–56
88 BVerfGE 203 (1993) (Abortion II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248–54, 256, 287
89 BVerfGE 155 (1993) (Maastricht Treaty). . . . . . . . . . . . . . . . . . . . . . . . . . . xxxvii, 276–80, 282, 287, 292–98
90 BVerfGE 286 (1994) (Out-of-area Deployments). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281–84
92 BVerfGE 1 (1995) (Sit-in Blockade II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxvii, 215, 257–60, 268, 272
93 BVerfGE 1 (1995) (Crucifix) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxvii, 260–66, 268, 270, 272–74, 287
93 BVerfGE 121 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
93 BVerfGE 213 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
93 BVerfGE 266 (1995) (‘Soldiers Are Murderers’). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxvii, 266–74, 281
94 BVerfGE 12 (1996) (Land Reform II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240–41
95 BVerfGE 96 (1996) (Inner-German Border Crimes). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242–45
95 BVerfGE 408 (1997) (‘Grundmandat’) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232–33
96 BVerfGE 102 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
96 BVerfGE 152 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
97 BVerfGE 120 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
98 BVerfGE 265 (1998) (Bavarian Abortion). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
99 BVerfGE 216 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
100 BVerfGE 266 (1999) (AWACS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281–84
101 BVerfGE 158 (1999) (Financial Equalization Post-Unification). . . . . . . . . . . . . . . . . . . . . . . . 246–48, 287
102 BVerfGE 254 (2000) (Compensation for Expropriated Lands). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
104 BVerfGE 151 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
104 BVerfGE 305 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
111 BVerfGE 54 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
xiv Table of Cases

111 BVerfGE 382 (2004) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . 97

112 BVerfGE 1 (2004) (Land Reform III). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ 241
114 BVerfGE 121 (2005) (Bundestag Dissolution II) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . 191
115 BVerfGE 118 (2006) (Anti-Terrorist Air Security). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . 288
117 BVerfGE 359 (2007) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 284
118 BVerfGE 244 (2007) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 284
120 BVerfGE 82 (2008). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . 232
121 BVerfGE 108 (2008) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . 97
121 BVerfGE 135 (2008) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 284
121 BVerfGE 317 (2008) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 302
122 BVerfGE 210 (2008) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 302
123 BVerfGE 267 (2009) (Lisbon Treaty). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . 279, 292–98, 302, 304
125 BVerfGE 175 (2010) (Hartz IV). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 302
126 BVerfGE 286 (2010) (Mangoldt). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . 298
129 BVerfGE 124 (2011) (First Greek Rescue, Eurozone Bailout). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
129 BVerfGE 300 (2011) (5% hurdle for EU elections). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 232, 291, 298
135 BVerfGE 259 (2014) (3% hurdle for EU elections). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . 291, 298–99, 301
134 BVerfGE 357 (2014) (Outright Monetary Transfers). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 300
135 BVerfGE 317 (2014) (European Stability Mechanism). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . xxvii, 301

FE DE R A L C ONST I T U T IONA L C OU RT CH A M BE R DECISIONS

10 BVerfGK 65 (2007). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . 273

FE DE R A L C OU RT OF J UST ICE

1 BGHZ 274 (1951). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . 30, 54
10 BGHZ 266 (1953). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . 52
13 BGHZ 265 (1954). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . 33–34, 36
14 BGHZ 138 (1954). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . 30

EU ROPE A N C OU RT OF J UST ICE

Costa v ENEL, ECR 586 (6/64). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . 144

U N I T E D STAT E S SU PR E M E C OU RT
Marbury v Madison, 5 US 137 (1803) . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . 1, 51
Brown v Board of Education, 347 US 483 (1954). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . 264
West Coast Hotel v Parish, 300 US 379 (1937). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . 181
Roe v Wade, 410 US 113 (1973). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 152 n267
Texas v Johnson, 491 US 397 (1989). . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . . . . . . . . . . . . . .å°“ . . . . . 257
 Prologue
The View from 1949

My ladies and gentlemen! What exactly is the aim of the work which we have under-
taken here? What does ‘Parliamentary Council’ mean? What does ‘Basic Law’ mean?
When in a sovereign state the People summons a constitution-giving national assem-
bly, its commission is clear and need not be discussed further: It has a constitution to
craft…. If we were to work under such conditions, we wouldn’t need to ask the ques-
tion, ‘What exactly are we about?’
—Carlo Schmid (1948)1

[T]‌he Basic Law was fortunate, not only in the circumstances that attended its inau-
guration, but also in the preconditions of its genesis. What? I  hear someone say:  a
defeated, decimated, and ruined land, divided in four by foreign powers, morally
and physically desolated; a hungry and freezing populace, millions of homeless refu-
gees and expellees, everyone occupied with bare survival; a people from whom every
thought of political engagement had been beaten out—these are felicitous precondi-
tions for the formation of a democratic constitution? Now, no one would maintain
that the Germans of 1948/1949 were happy. They were as unhappy as it is possible to
be. But precisely the deepest misfortune can be the most felicitous precondition for a
new beginning.
—Sebastian Haffner (1976)2

I.  De Profundis
A spectre haunted the Council’s deliberations—the spectre of the collapse of the Weimar
Republic. The Parliamentary Council had convened on 1 September 1948 in the stately
Koenig Museum in Bonn. Its purpose was to craft an interim constitution for Germany’s
Western occupation zone. The Council consisted of seventy delegates, appointed by
Germany’s Western states, roughly one delegate for every 750,000 citizens.3 The Council,
which included four women, was dominated by jurists and civil servants. Several del-
egates had suffered greatly during the Nazi era—some lost jobs, some fled abroad, five
were interned in concentration camps. A handful enjoyed successful or influential careers
during the Third Reich. Few delegates were young; their average age was fifty-six. Nearly
all had come of political age before or during the Weimar era. They were haunted by the
Weimar Republic’s failure; tormented by the calamities and atrocities that followed. The
Weimar constitution, with its putatively fatal and fateful flaws, was the demon that drove
the Council’s deliberations.4

1  ‘Speech of Delegate Carlo Schmid to the Parliamentary Council, 8 September 1948’ in Parlamentarischer

Rat. Stenographische Berichte über die Plenarsitzung (Bonner Universitäts-Druckerei 1948/1949) 70.

2 Sebastian Haffner, ‘Der Erfolg des Grundgesetzes’ in Sebastian Haffner, Im Schatten der Geschichte.

Historisch-politische Variationen aus zwanzig Jahren (Deutsche Verlags-Anstalt 1985) 191.

3  The five delegates from West Berlin were not voting members of the Council.
4  For reflections on the spectre of Weimar in German political discourse, see Christoph Gusy (ed), Weimars

lange Schatten—’Weimar’ als Argument nach 1945 (Nomos 2003).

xvi Prologue

The Council was not a constitutional convention or constituent assembly in any tradi-
tional sense. It was convened, not at the behest of the German people but at the command
of their allied occupiers. Its members were chosen, not by popular election but through
appointment by the parliaments of the several states—states that had been reconstituted
shortly after the War. The constitution the Council promulgated on 23 May 1949 was never
submitted for popular ratification of any kind.
It was a constitution, moreover, that dared not speak the name. As one writer has
observed, the very designation ‘constitution’ (Verfassung) struck the delegates as ‘too lofty,
too solemn, too definitive’ for the document they produced.5 Instead, the Council chris-
tened its handiwork a ‘Fundamental Law’ or, as we shall call it in this work, a ‘Basic Law’
(Grundgesetz), one that by the terms of its own preamble was preliminary, provisional,
transitional, and temporary.6 The Basic Law, the preamble declared, would apply dur-
ing a ‘transitional period’ (Übergangszeit) until the ‘entire German people’ could, ‘in free
self-determination, complete the unity and freedom of Germany’.7 The point was repeated,
emphatically, in the Basic Law’s final provision. ‘This Basic Law’, Article 146 stipulated,
‘shall cease to apply on the day when a constitution [Verfassung] established by free choice
of the German people enters force’.8
But for all the disclaimers, the Basic Law read, in substance and in style, like a full-fledged
constitution. The preamble spoke of ‘the German people’ acting with a ‘consciousness of its
responsibility before God and men’ and ‘by virtue of its constitution-giving authority’. It
was a provisional constitution, perhaps, but it was a constitution all the same, complete with
a catalogue of fundamental rights and a thorough allocation of powers between branches
and levels of government.
The Basic Law both created a West German state and confirmed the division of Germany.
There was little doubt that, once the Western Allied powers—Britain, France, and the
United States—had overseen the creation of a new state in the Western occupation zone, the
Soviet Union would follow suit in the East. Western and Soviet policy concerning Germany
had long been on a collision course. The ‘German Question’ became the first concrete con-
troversy of an incipient Cold War.
Only forty months separated the convening of the Parliamentary Council from the sub-
terranean suicide of Adolf Hitler and the subsequent surrender of the German Reich. As
early as January 1943, in Casablanca, the Allies had resolved to press relentlessly for uncon-
ditional surrender. And this, in fact, is what they achieved. Hitler himself had wished it
so. Already in the mid-1920s he had written in Mein Kampf that it was Germany’s destiny
to become ‘either World Power or nothing at all’.9 Alles oder nichts—all or nothing—had
been the Führer’s mantra. When Germany’s bid for world conquest failed, national dissolu-
tion was, in Hitler’s view, the natural consequence. In his final hours, Hitler raged that the
German people had proven unworthy of him—unworthy even of survival. The Germany
people had ‘proven themselves the weaker’, and should share, Hitler thought, in his own
Gӧtterdӓmmerung.10
Germany’s allied conquerors—with several caveats and without the frenzied prism of
Hitler’s radical, Manichean cosmic Darwinism—agreed. ‘Germany’, observed General
Charles de Gaulle, ‘driven to fanaticism by its dream of mastery, so conducted the war

5  Christoph Schӧnberger, ‘Anmerkungen zu Karlsruhe’ in Matthias Jestaedt and others, Das Entgrenzte

Gericht. Eine kritische Bilanz nach sechzig Jahre Bundesverfassungsgericht (Suhrkamp 2011) 11.
6  Throughout this book, references to specific articles of the Basic Law will use the abbreviation ‘GG’ for

Grungesetz—i.e. ‘Article 3(1) GG’ refers to Article 3, section 1 of the Basic Law.

7 Preamble, GG. 8  Article 146 GG. 9  Adolf Hitler, Mein Kampf, 37th edn (Eher 1933) 742.
10  In Albert Speer, Erinnerungen (Ullstein 1969) 446.
 Prologue xvii

that the contest became—materially, politically, and morally—a total conquest. The victory
must therefore be a total victory. This has occurred. With regard to state, power, and doc-
trine, the German Reich is destroyed’.11 Unconditional surrender gave the Allies the right to
reorganize the German state. As one German historian has written, ‘Germany had become
the plaything [Spielball] of the Allies’.12
On the question what to do with this plaything, the Allies were deeply divided, and
grew more divided as time went on. All agreed, however, that Germany must be pun-
ished. Germany was responsible—and, in Europe, solely responsible—for the bloodiest
conflict in world history, a war that had killed some sixty-six million people. More than
five million Germans had died, including 500,000 civilians. But there could be no ques-
tion that the Germans were more sinning than sinned against—worlds without end, more
sinning. Germany had murdered more Jews than it had lost soldiers. It became clearer
with each Allied ‘liberation’ of a German concentration camp that the German state had
commanded—and individual Germans had committed—crimes of horrific, sickening,
and unprecedented scope. But even before this became obviously known, the Allies were
resolved that Germany should pay for the cost of the War in treasure and blood. The Allies
were resolved that any recurrence of expansionist German aggression should be rendered
forever impossible. At the Tehran Conference in the final weeks of 1943, the Allied ‘Big
Three’—Roosevelt, Churchill, and Stalin—agreed that after the War Germany must be
stripped of all capacity to train soldiers or produce armaments. It should have no military
capabilities at all. Roosevelt thought the word ‘Reich’ should be stripped from the German
language.13
At War’s end it was clear that the peace would be Carthaginian. The Germans must beat
their swords into ploughshares—literally, some thought. Henry Morgenthau, the American
treasury secretary, advocated the wholesale de-industrialization of Germany—its sweep-
ing reconversion into an agricultural land.14 This was impracticable, as other Allied
leaders realized. Germany was too densely populated and too urban to return to some
pre-industrial bucolic idyll. What’s more, the Allies feared the political consequences of
avulsive economic disruption. They remembered the radicalization that flourished in the
instability that followed the previous War. Still, they were resolved to treat the Germans
roughly. The American military governor received orders to exercise uncompromising
severity. Germany’s Eastern borders were rolled back—a move that forced the westward
flight of millions of German nationals—and its reduced territory divided into four occu-
pation zones, each to be overseen by one of the victorious Allies. The Allies’ occupation
policy was to be guided by four ‘D’s’: demilitarization, denazification, decentralization, and
democratization.
Of these, denazification was the most controversial and the most unevenly applied.15
Implementation by the Americans was in some respects the most militant. In early 1947, the

11  Charles de Gaulle, Discours de Guerre (Mai 1944—September 1945), vol 3 (Egloff 1945) 214.
12  Manfred Gӧrtemaker, Geschichte der Bundesrepublik Deutschland (CH Beck 1999) 19.
13  See Keith Sainsbury, The Turning Point:  Roosevelt, Stalin, Churchill, and Chiang-Kai-Shek, 1943:  The

Moscow, Cairo, and Teheran Conferences (Oxford University Press 1986); Keith Eubank, Summit at Teheran
(William Morrow & Co. 1985).
14  See John Dietrich, The Morgenthau Plan: Soviet Influence on American Postwar Diplomacy, 2nd edn (Algora

Publishing 2013) 4.
15 For recent general accounts of denazification, see Francis Graham-Dixon, The Allied Occupation of

Germany:  The Refugee Crisis, Denazification, and the Path to Reconstruction (IB Tauris 2013); Fred Taylor,
Exorcising Hitler: The Occupation and Denazification of Germany (Bloomsbury Press 2011). On denazification
in the Eastern Occupation Zone, see Timothy Vogt, Denazification in Soviet-Occupied Germany: Brandenburg,
1945–1948 (Harvard University Press 2000).
xviii Prologue

former American president, Herbert Hoover, reported to the sitting American president,
Harry S. Truman, that in the American and British occupation zones some 90,000 for-
mer Nazis were held in internment camps (Hoover called them ‘concentration camps’) and
1,900,000 others were under sanctions by which they were allowed to engage only in manual
labour.16 Denazification in the Western zone would end only in February 1950, two years
later than in the Soviet zone. By then, millions of Germans had filled out questionnaires
regarding their activities during the Nazi era and their views concerning Nazi ideology.
Thousands were required to view grisly footage of the liberated death camps. The process
was bitterly resented by the German populace. Its educative impact was hotly contested.
Denazification coincided with the spectacular trials of German leaders and Nazi opera-
tives for war crimes and crimes against humanity. Of these the most sensational were the
trials held in Nuremberg between November 1945 and October 1946. The trials were con-
ducted by extraordinary courts. The criminal jurisdiction of ordinary German courts was
limited to simple crimes perpetrated by Germans against Germans (or against stateless
persons). German courts would acquire jurisdiction over alleged Nazi crimes only in 1955.17
In 1946, the philosopher Karl Jaspers published The Question of German Guilt, a seminal
essay in which he probed the problem of Germans’ culpability for Nazi crimes.18 Jaspers dis-
tinguished between criminal guilt, which involved breaking positive law and was punished
by the courts; moral guilt, which involved personal failure to meet moral duties and must
be processed by each individual; political guilt, which implicated citizens in the crimes of
a murderous regime and was being dealt with by the War’s victors; and metaphysical guilt,
which involved ruptures in the basic solidarity of human interaction and could be judged
only by God.19 Jaspers’ taxonomy would exert enormous influence on subsequent efforts
to come to terms with the German past.20 But its nuances would have been lost on the vast
majority of Jaspers’ immediate contemporaries, even if they had taken the time to read his
essay. Most Germans in the immediate postwar era were more concerned with provisions
than with penance, in more desperate search of food and fuel than of pardon and absolution.
Life in the occupation zones was grim. Allied bombing campaigns had wrought massive
destruction of dwellings. An epidemic of homelessness was compounded by the arrival
of thousands of ‘displaced persons’ from the East. Millions of Germans were living in the
War’s residual rubble, waging a daily battle against hunger and cold. Not until 1948 would
the average German in the Western zone reach the daily caloric intake requirements set
forth by the League of Nations in 1936.21 Malnutrition and under-nutrition heightened the
risk of the spread of disease. Existence was particularly precarious for refugees and expel-
lees from the East. To many observers it seemed a kind of divine visitation on a nation that
had ground countless slave labourers to death by starvation and famine, and that had sys-
tematically murdered millions of political dissidents, homosexuals, Roma, and Jews.
Some observers feared that these bleak conditions would foment radicalization. But for
most the battle for bare subsistence rendered all ideologies superfluous.22 In any case, Allied
officials and soldiers were on hand to nip signs of nascent radicalism in the bud.

16 Herbert Hoover, The President’s Economic Mission to Germany and Austria:  Report no.  1—German

Agricultural and Food Requirements (1947) 2.

17 Gӧrtemaker (n 12) 26–27.
18  Karl Jaspers, Die Schuldfrage. Ein Beitrag zur deutschen Frage (Artemis-Verlag 1946).
19 ibid 10–14.
20  See Jan-Werner Müller, German Intellectuals, Unification and National Identity (Yale University Press

2000) 27–29.
21 Gӧrtemaker (n 12) 29. 22 ibid 30.
 Prologue xix

Under these circumstances, it is hardly surprising that there was little popular politi-
cal engagement during the founding moments of postwar West German politics. It was
not a season of rebirth, but a time for old hands to collect shattered fragments. Several
new parties formed in the early postwar months, nearly all of them led by Weimar veter-
ans. The Christian Democratic Union (CDU) was founded 17 June 1945 in Cologne on the
‘unshakable foundation of Christianity and Western [abendlӓndisch] culture’.23 Among the
party’s founders was Cologne’s sixty-nine-year-old mayor, Konrad Adenauer. The German
People’s Party (DVP) formed three months later under the leadership of Reinhold Maier
(age fifty-six) and Theodor Heuss (age sixty-one). Thomas Dehler, who helped found the lib-
eral Free Democratic Party in December, was a comparatively youthful forty-eight. Almost
immediately after the War, the Leftist Social Democratic Party (SPD) reemerged from its
Nazi-era ban under the direction of Kurt Schumacher, who had been interned during the
War in various concentration camps.
The creation or reestablishment of political parties coincided with the reorganization,
shortly after the War, of the individual West German states (Lӓnder). It was for influence
within these reorganized states that the parties first contended. The contending factions
sought control of municipal councils and state parliaments. In time, however, events
prompted the Western occupying powers to call for the creation of a West German state.
At that point the parties became national; they vied for influence—but also collaborated as
statesmen—in the shaping of a new nation.
The critical year was 1948. In March, discussions among the four Allied powers regard-
ing a common currency reform failed definitively. Nazi policies for financing the War had
ruined the Mark irrevocably, but as yet the Mark had no replacement. The principal coin
of the realm in the immediate postwar era was the cigarette. In July, failure among the four
Allies to unite on the currency question led the Western Allies to introduce a new currency,
the Deutsch-Mark, within the Western occupation zone. Efforts to extend the new currency
to West Berlin provoked a Soviet blockade—and a prolonged crisis in Berlin.
The Soviet gambit backfired. It fostered solidarity among the Western powers and
forged, among West Germans, an emotional bond with West Berlin. Berlin became a sym-
bol of Western resilience in the face of Soviet aggression. The instantly famous ‘airlift’ by
which the Western powers—primarily the United States—provisioned the Western half of
Germany’s fallen capital was a logistical miracle and symbolic triumph. Between June 1948
and May 1949 more than 270,000 flights delivered more than 1.8 million tons of goods at a
cost of more than $200 million. In Germany’s Western zone, the drama helped reconcile the
victors and vanquished of the recent War.24

II.╇ The Parliamentary Council

As a steady stream of flights roared into Berlin—sometimes as frequently as one every few
minutes—politicians in Frankfurt and Bonn were quietly creating a West German con-
stitution. In the early months of 1948, British and American leaders ventilated the idea
of forging a tight-knit group of Western democracies in which a new West German state
would play an appropriate role. As the year progressed, the Western Allies—despite French

23╇‘Kӧlner Leitsӓtze’ in Ossip K. Flechtheim (ed), Dokumente zur parteipolitischen Entwicklung in Deutschland

seit 1945, vol 2 (Wendler & Co. 1969) 31.

24╇ Accounts of the airlift are plentiful; many are panegyrical. For a sampling, see Richard Reeves, Daring

Young Men: The Heroism and Triumph of the Berlin Airlift, June 1948–May 1949 (Simon & Schuster 2010); Roger
G. Miller, To Save a City: The Berlin Airlift, 1948-1949 (Texas A&M University Press 2000).
xx Prologue

reservations—increasingly pushed for the promulgation of a West German constitution

and the creation of a West German state. In July, the minister presidents of the several
Western German states met in Frankfurt to confer about the project. Some state premiers
worried that the fact and nature of Allied occupation were incompatible with the promulga-
tion of a free constitution and the founding of a new state. They also feared that enacting a
West German ‘constitution’ would cement German division. They preferred, as noted, to
call the document a ‘Basic Law’. Ultimately, the Allies yielded on nomenclature, and the
states forged ahead. In September 1948, the states’ delegates convened as a ‘Parliamentary
Council’ in Bonn, the birthplace of Beethoven on the banks of the Rhine.
Bonn was a fateful, if not an obvious choice. Frankfurt, home of the ill-starred ‘Paul’s
Church’ constitution of 1848/49, was the clear symbolic option. There would have been some-
thing poignantly appropriate in the Council’s convening on the site and at the centennial of
Germany’s first attempt at a liberal democratic constitution. But the minister presidents were
shy about signals of solemnity and shows of permanence. They wished to wear their symbolism
lightly. Besides, Frankfurt was the headquarters of the Allied occupation, and the premiers
wanted to give the councillors some distance from their overseers. Bonn was a compromise
choice. Most minister presidents had proposed something closer to home—sites near their own
state capitals. Reinhold Maier, minister president of Württemberg-Baden, for instance, sug-
gested Karlsruhe, a sleepy city near the Southwest Franco-German border. In time, Karlsruhe
would receive the consolation prize of housing the new country’s preeminent courts of law.
Before the Parliamentary Council convened in Bonn at the beginning of September,
a preliminary convention was held for thirteen days in August on the Herrenchiemsee
Island in lower Bavaria. The Herrenchiemsee convention consisted of a handful of
delegates—ostensibly civil servants rather than politicians—tasked by the minister presi-
dents to issue nonbinding recommendations to the Parliamentary Council. The convention
represented the last chance for the minister presidents to influence the formation of the
Basic Law. In fact, that influence was enormous. Many of the Herrenchiemsee convention’s
most striking proposals—a strong federal government, a weak head of state, an aversion
to plebiscites, a ban on amendments that would overturn the constitution’s democratic
premises—made their way, in one form or another, into the Basic Law itself.
In order to create a home for the Parliamentary Council, Bonn’s Pedagogical Academy—a
Spartan outfit near the centre of town—was hastily converted into a parliamentary build-
ing. The Academy’s ceremonial hall was made into an assembly room. A classroom was
placed at the disposal of each of the Council’s partisan factions. No contemporary foresaw
that the building would serve as a seat of government for five decades. On 1 September 1948,
the ceremonial opening of the Council was staged nearby in the more imposing Koenig
Museum. Here too adjustments had to be made. The hall that housed the festivities was
ordinarily a showplace of taxidermy. Many animals were hurriedly removed, and others
swiftly covered, before the show began.
As shows go, the Council’s opening was a sombre one, featuring sumptuous music by
Beethoven and Bach and sober speeches by Karl Arnold, minister president of the host state
of North Rhine Westphalia, and Christian Stock, premier of Hesse and chair of the minister
presidents’ conference. Stock was at particular pains to deny that the Council’s conven-
ing sealed Germany’s division. ‘If it is said that today in Bonn is completed the division of
the German people’, Stock intoned, ‘then I hereby declare to the German people: We do
not divide, we lead together and unite’.25 Strikingly, no representative of the Allied powers

25 In Theodor Eschenburg, Geschichte der Bundesrepublik Deutschland. Jahre der Besatzung 1945–1949

(Deutsche Verlags-Anstalt 1983) 485.

 Prologue xxi

spoke during the service—a fact that seemed to confirm Stock’s proud remark that the
assembly represented the first in postwar German history instigated, not by the Diktat of
the conquerors, but ‘according to agreements between the military governors and the min-
ister presidents’.26 In the months that followed, Allied influence over the Council’s delib-
erations wavered between slender and non-existent. The architects of the West German
constitution were West Germans, a fact that gave credence to later insistence that the Basic
Law was not an oktroyierte constitution (one dictated ‘from above’), but a product, in some
sense, of regional self-determination.27
The Council’s first order of business was to choose its leaders. Here, naturally, each party
wished to place its own chieftains in important posts. The two principal factions—the
CDU/CSU faction28 and the SPD faction—each had twenty-seven delegates. This might
have led to an impasse in choosing the Council’s president, but for the SPD’s calcula-
tion that the president would prove less influential than the chair of the Council’s central
committee (Hauptausschuss). The calculation was not unreasonable. For one thing, the
president’s role was, in an important sense, nonpartisan. He would govern the Council’s
deliberations but (it was supposed) have little impact on the substance of its proposals.
What’s more, in the German tradition parliamentary presidents rarely went on to become
leading politicians. The presidency was viewed as a terminal position—all the more so in
this case since the CDU/CSU presidential candidate, Konrad Adenauer, was seventy-two
years old when the Council convened. The SPD gladly yielded the presidency to the Union
parties and Adenauer in exchange for the central committee chairmanship, which went
to Carlo Schmid. As it happened, the Social Democrats were spectacularly wrong about
Adenauer—both about his influence within the Council and about his future political
career.
Adenauer and Schmid were a study in contrasts. The septuagenarian Adenauer was a
sober figure with a cold and craggy visage that somehow sharpened the impact of his fre-
quent humorous interventions. He could deadpan to deadly effect. Adenauer was a forceful
politician whose very lack of glamour and flashiness enhanced his aura of statesmanlike
gravitas. Schmid was twenty years Adenauer’s junior and as ebullient as Adenauer was com-
posed. Schmid was a brilliant academic lawyer and a man of immense cultivation—urbane,
witty, and warm, with a genial round face and unruly greying hair. He was a multi-faceted
figure who combined multiple roles with grace and panache—a scholar, a politician, and a
man of letters. (In idle hours he translated Macchiavelli and Baudelaire.) Schmid disarmed
opponents and delighted the press with his immense personal charm and inexhaustible
supply of sparkling one-liners. One journalist found Schmid’s very vanity—which she
termed ‘childlike’—endearing.29 Whereas Adenauer’s outlook was firmly anchored in his
native Rhineland, Schmid—who was born to a French mother in the south of France—took
a resolutely cosmopolitan view of the world. Schmid saw himself, and was seen by others, as
a European, a ‘Westerner’, a citizen of the world.
Both men exerted enormous influence within the Parliamentary Council. Adenauer was
no mere figurehead; he played a pivotal role in the Council’s debates. He also presided with
dignity and skill, exuding a sobriety and poise that earned him international attention and
led, in September 1949, to his becoming the first federal chancellor of the infant Federal
Republic (as the new West German state was to be called). Schmid, for his part, insisted

26 ibid.
27  See Udo di Fabio, ‘Vom Recht, Recht zu Sprechen’ (2011) 61 Aus Politik und Zeitgeschichte 3, 4.
28  That is, the Christian Democrats and their Bavarian sister party, the Christian Socialist Union.
29  In Gӧrtemaker (n 12) 63.
xxii Prologue

during the Council’s earliest discussions that the delegates were not assembled to erect a
new state. They were to craft an ‘administrative statute’ (Verwaltungsstatut)—an interim
measure that would govern the Western territories until the Allies reached a more perma-
nent resolution to the German Question. The real ‘constitution’, Schmid suggested, would
be the Allies’ occupation statute. But Schmid threw himself into the Council’s labours, and
those labours soon carried him away. The work enthralled him. The constitutionalist in
Schmid could not resist the allure of constitution making. The student of Machiavelli and
Plutarch could not refuse the chance to play Numa or Solon. With Schmid leading the way,
the Council proceeded, over long laborious months, to frame a full-blown constitution,
to charter a brand new state. Through the autumn, winter, and spring of 1948/49, Carlo
Schmid stood at the centre of the West German political constellation. And he shone bril-
liantly. Schmid was West Germany’s James Madison. Perhaps more than any other del-
egate to the Parliamentary Council, Schmid deserves to be called ‘the father of the Basic
Law’. But it was Adenauer who would become the father of the Federal Republic. After the
Parliamentary Council had finished its work, Schmid’s star would never shine so brightly
again; Adenauer’s star had only begun to rise.
On 8 May 1949—four years to the day after the unconditional surrender of the German
Reich—the Parliamentary Council agreed, by a vote of 53:12, to adopt a Basic Law constitut-
ing the new Federal Republic of Germany. The negative votes came from the two commu-
nist delegates (who remained seated while their peers stood to vote); the two delegates from
the German Party; the two representatives of the Centre Party; and six of the eight delegates
from the Bavarian Christian Socialist Party (CSU). The CSU holdouts, who insisted that the
proposal did too little to honour states’ rights, were taken firmly to task by a fellow Bavarian,
the fiery FDP delegate Thomas Dehler, one of three members of the Council’s redaction
committee. The Council had tried repeatedly, Dehler said, to meet Bavarian objections
halfway. ‘The thanks’, he complained, ‘was that again and again they said no’.30 His choler
rising, Dehler accused the CSU delegates of irresponsibility, duplicity, and even sabo-
tage. Dehler’s vehemence caused a stir, and Adenauer had to call for order. The Bavarians
sought revenge four months later by opposing (unsuccessfully) Dehler’s appointment as the
Federal Republic’s first minister of justice—a role in which we shall encounter Dehler and
his trenchant tongue later in these pages.
Dehler may have been the most outspoken, but he was not the most influential FDP del-
egate in the Council. That honour went to Dehler’s friend and party comrade Hermann
Höpker-Aschoff, a courtly Berlin politician and former Prussian minister of finance.
Höpker-Aschoff, who stood directly in front of Dehler for the Council’s final vote, played
such an able and important role in shaping the Basic Law’s tax and finance provisions
that he was later dubbed ‘father of the financial constitution’.31 The sixty-six-year-old
Höpker-Aschoff had been a member of the Reichstag during the Weimar era and hoped
for high political office in the neophyte Federal Republic. Instead he had to settle, firmly
against his will, with becoming the first chief justice of the Federal Constitutional Court.
The new Court was one of the Basic Law’s many innovations, most of which responded
in one fashion or another to the collapse of the Weimar Republic or the crimes and calami-
ties of the Third Reich. For example, the Basic Law circumscribed strictly the role of the
federal president. The Weimar Reich president had been a powerful figure, popularly

30 In Eschenburg (n 25) 509.

31 See Frank Spieker, Hermann Höpker-Aschoff. Vater der Finanzverfassung (Duncker & Humblot 2004). For
Höpker-Aschoff’s own assessment of the provisions he helped craft, see Hermann Höpker-Aschoff, ‘Das Finanz-
und Steuersystem des Bonner Grundgesetzes’ (1949) 75 Archiv des ӧffentlichen Rechts 306.
 Prologue xxiii

elected and able, in case of parliamentary impasse or impotence, to dissolve the Reichstag
and govern by emergency decree. As the Weimar Reichstag descended into instability and
chaos, the Reich president made increasing use of his power to issue emergency decrees.
The president’s office became something of a plebiscitary dictatorship. Worse still, it was
Reich President Paul von Hindenburg who, in January 1933, summoned Adolf Hitler to
the chancellorship and asked the Nazi leader to form a government. The president of the
Federal Republic, by contrast, would be a largely ceremonial figure. He would be elected
by Parliament, not by popular vote, and he would wield no independent power to dissolve
Parliament.32
Parliament itself was considerably strengthened. The Council’s delegates were tormented
by the memory of Weimar’s chaotic carousel of shifting coalitions and collapsing govern-
ments, of immobile parliaments repeatedly dissolved. Under the Basic Law, only Parliament
had power to appoint or dismiss a government. And Parliament could not dissolve the gov-
ernment merely by denying its confidence to the head of government, the federal chancellor.
It could do so only by voting affirmatively to appoint a new chancellor. It could topple the
sitting government, in other words, only by appointing its successor. Such a ‘constructive
vote of no confidence’ was one of the Basic Law’s major innovations. The framers wished
for strong, stable leadership, and they sought to provide it in an energetic federal govern-
ment under the leadership of a vigorous federal chancellor. But the chancellor was to be
appointed, not by plebiscite or by the president, but by Parliament. Here as elsewhere the
Basic Law shunned plebiscitary elements.33
It also shunned centralized power. This was particularly so in the constitution’s federalist
provisions, which reserved crucial realms of governance and administration to the states.
The Basic Law also divided Parliament into two chambers: the Bundestag, comprised of
members chosen in countrywide elections; and the Bundesrat, comprised of representa-
tives of the several states—members, indeed, of individual state governments.
The framers sought further to protect Parliament from the poisonous influences that had
undermined parliamentary government in the twilight days of the Weimar Republic. It
was conventional wisdom among the delegates that the Weimar Republic was a democracy
incapable of defending itself against democracy’s enemies. Drawing on the putative ‘les-
sons of history’, the delegates of the Parliamentary Council sought to establish a ‘militant
democracy’ (wehrhafte Demokratie), a notion elaborated during the 1930s by the émigré
political theorist Karl Loewenstein.34
The Basic Law was militant in various ways. It provided, first of all, that anyone who
abused basic rights to attack the Basic Law’s ‘free democratic basic order’ (freiheitliche
demokratische Grundordnung) would forfeit those rights.35 What’s more, a political party

32  See Konrad Adenauer, Erinnerungen 1945–1953 (Deutsche Verlags-Anstalt 1965) 153 (‘A general princi-

ple on our part was that we must draw the necessary conclusions from the errors of the Weimar Republic. The
position of the future Federal President must not be endowed with the authority that the Reich President of the
Weimar Republic possessed’.).
33  On the influence of ‘Weimar arguments’ in the decision against plebiscites and referenda, see Andreas

Wirsching, ‘Konstruktion und Erosion: Weimarer Argumente gegen Volksbegehren und Volksentscheid’ in

Weimars lange Schatten (n 4) 335. As one member of the Parliamentary Council put it, ‘The plebiscite, the popular
initiative … is, in the time of mass politics [Vermassung] and uprootedness, and in large-scale democracies, a
blessing to every demagogue’. In ibid.
34  See Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I’ (1937) 31 Am Pol Sc Rev 417; Karl

Loewenstein, ‘Militant Democracy and Fundamental Rights II’ (1937) 31 Am Pol Sc Rev 638; Karl Loewenstein,
‘Legislative Control of Political Extremism in European Democracies I’ (1938) 38 Colum L Rev 591; Karl
Loewenstein, ‘Legislative Control of Political Extremism in European Democracies II’ (1938) 38 Colum L Rev
725; see also Max Lerner, It Is Later Than You Think: The Need for a Militant Democracy (Viking Press 1938).
35  Article 18 GG (1949).
xxiv Prologue

that sought to undermine or abolish the free democratic basic order was ‘anti-constitutional’
(verfassungswidrig) and could be banned.36 These constitutional shields against radicalism
were buttressed further by election law provisions that closed the doors of Parliament to any
party that failed to secure at least 5 per cent of the votes in a federal election.37
‘Free democratic basic order’ was an imposing phrase—doomed, alas, to infelicitous
translation—that appeared three times in the text of the Basic Law. In one of its most dra-
matic provisions, the Basic Law sought to render the Republic’s democratic essence immu-
table and unamendable. Article 79 announced that the Basic Law’s text could be amended
by a two-thirds vote in both chambers of Parliament. But an amendment ‘through which
the division of the federation in states, the fundamental involvement of the states in legisla-
tion, or the principles laid down in Articles 1 and 20 are affected is impermissible’.38 Article
1 declared that human dignity was sacrosanct and inviolable, and that the fundamental
rights catalogued in Articles 2 through 19 were directly binding on all legislative, execu-
tive, and judicial authorities. Article 20 proclaimed that the new Federal Republic was ‘a
democratic and social federal state’. Article 79’s ‘eternity clause’ shielded these provisions
against future alteration.
The Basic Law’s treatment of fundamental rights marked another profound break from
the Weimar tradition. The Weimar constitution’s fundamental rights provisions appeared
only in the latter portions of the document, and Article 48 explicitly empowered the Reich
president, in a national emergency, to set several of these provisions aside. Furthermore,
Weimar-era constitutionalists sharply disputed whether the constitution’s ‘social rights’
provisions were enforceable as positive law. Most public lawyers differentiated between
these and classical, negative rights, insisting that only the latter were judicially enforceable;
the former had a merely hortatory, programmatic character. Defensive rights were applied
by the administrative courts, but the Weimar Republic had no exclusively constitutional
tribunal.
The Basic Law changed all this. The Bonn framers placed the Basic Law’s fundamental
rights catalogue at the very beginning of the document and gave fundamental rights central
significance. As noted, the constitution’s first article proclaimed that ‘[t]‌he following funda-
mental rights bind legislature, executive, and judiciary as directly valid law’.39
The fundamental rights then listed included many of the classical, ‘negative’ rights of
the liberal tradition. The catalogue protected citizens against state interference in reli-
gious belief and practice,40 speech and expression,41 research and teaching,42 art and
scholarship,43 associations and assemblies,44 domestic travel and postal communications,45
homes and property,46 choice of work and petitions to public authority.47 The Basic Law also
guaranteed to all people the right to life and bodily integrity;48 equality before the law; and
protection against discrimination on the basis of gender, ancestry, race, language, religious
belief or political ideology.49 In an elliptical phrase, each person was promised ‘the right
to the free development of his personality’, but only so long as he didn’t interfere with the
rights of others, the constitutional order, or the moral law.50

36  Article 21(2) GG.

37  For the 1949 Bundestag elections, this so-called ‘five-percent hurdle’ or ‘Sperrklausel’ applied separately
within each state. From 1953 onwards, it applied generally nationwide.
38  Article 79(3) GG. 39  Article 1(3) GG. 40  Article 4(1)–(2) GG. 41  Article 5(1) GG.
42  Article 5(3) GG. 43  Article 5(3) GG. 44  Article 9(1) GG; Article 8(1) GG.
45  Article 11(1) GG; Article 10 GG. 46  Articles 13–14 GG.
47  Article 12(1) GG; Article 17 GG. 48  Article 2(2) GG. 49  Article 3(1), (3) GG.
50  Article 2(1) GG.
 Prologue xxv

The members of the Parliamentary Council agreed early in their deliberations to limit
the Basic Law’s rights catalogue to such classical rights. But this agreement was in some
particulars abandoned.51 The Catholic Church exerted a strong influence on the CDU/CSU
delegates, who pushed successfully for provisions placing ‘marriage and family’ under the
‘special protection of the state’, and recognizing that the ‘care and upbringing of children’
was the ‘natural right of parents’.52 Social Democrat delegates, for their part, successfully
included a provision guaranteeing equal legal and social status to ‘non-marital children’.53
And champions of gender equality, led by the stalwart Elisabeth Selbert (SPD), successfully
inserted the concise phrase, ‘Men and women have equal rights’ (Mӓnner und Frauen sind
gleichberechtigt).54
How were these rights to be enforced? Article 19, the last article in the Basic Law’s fun-
damental rights catalogue, declared that ‘the path of the law’ (der Rechtsweg) was open to
any whose rights were violated by public authority.55 This was a gesture toward the courts,
and more specifically to a court created by the Basic Law itself—a court that would, in the
fullness of time, do more than perhaps any other public institution to shape the legal, con-
stitutional, political, and even the moral culture of the Federal Republic.

III.╇ The Federal Constitutional Court

The Basic Law referred no fewer than twenty times to the Federal Constitutional Court
(Bundesverfassungsgericht). The document called for the Court’s creation, and endowed
it with extraordinary powers. The Court would consider appeals from various Bundestag
decisions dealing with electoral law and various Bundesrat decisions dealing with admin-
istrative matters.56 It would decide on the accuracy of parliamentary allegations that
the federal president or judges of the ordinary courts had engaged in unconstitutional
behavior.57 Within the Basic Law’s militant democracy, the Court would determine to what
extent persons who abused fundamental rights would forfeit those rights,58 and it would
decide whether (on appeal from Parliament or the federal government) to ban allegedly
anti-constitutional political parties.59 Most portentous of all, the Court would wield exclu-
sive jurisdiction over all controversies arising between branches and levels of government,
and all challenges to the constitutionality of state or federal law.60 The Court would police
the boundaries of constitutional authority between the chambers of Parliament; between
Parliament and the federal government; between the federation and the states; and between
individual states.
The Court’s constitutional jurisdiction would be exclusive; and its jurisdiction would
be exclusively constitutional. The Parliamentary Council embraced thus the so-called
‘Austrian model’ of judicial review (exemplified by the ill-starred Austrian Constitutional
Court of the 1920s) over the ‘American model’ (exemplified by the United States Supreme
Court). West Germany’s Federal Constitutional Court would not be a supreme appellate
court of general jurisdiction, but a specialized body empowered to decide all constitutional
controversies and only constitutional controversies. If, in the course of a legal proceeding,
an ‘ordinary’ court concluded that a law crucial to its decision was of doubtful constitution-
ality, the Basic Law directed that court to adjourn the proceedings, refer the constitutional

51╇ Eschenburg (n 25) 502. 52╇ Article 6(1)–(2) GG. 53╇ Article 6(5) GG.

54╇ Article 3(2) GG. 55╇ Article 19(4) GG. 56╇ Article 41(2); Article 84(4).
57╇ Article 61(1) GG; Article 98(2) GG. 58╇Article 18 GG. 59╇ Article 21(2) GG.
60╇ Article 93 GG; Article 100 GG.
xxvi Prologue

question to the Federal Constitutional Court, accept the Court’s answer as binding, and
resolve the case on that basis.61
The framers established or anticipated two features of the Court’s jurisdiction that would
profoundly shape the history of the Federal Republic. The first was the power of abstract
judicial review (Normenkontrolle), by which the Court could—on appeal from a qualified
parliamentary minority, the federal government, or a state government—review the consti-
tutionality of federal legislation directly. This prerogative dispensed with an American-style
‘case or controversy’ requirement. In a very short time, it would give opposition parties a
remarkable weapon in opposing majority initiatives. To this was later added the right of
individual complaint, by which private citizens, having exhausted other legal remedies,
could appeal to the Court to redress infringements of their constitutional rights. Such com-
plaints, though subject to standing requirements, would give ordinary citizens access to the
country’s supreme constitutional tribunal. In years to come, West German citizens filed
individual complaints by the tens of thousands. The procedure would become a central
source of the Court’s public trust and popular esteem.
Taken together, these provisions amounted to a staggering conferral of judicial authority.
Rarely in world history had a court wielded such wide competence. If the Basic Law exuded
the aura of a full-fledged constitution, the Constitutional Court bore all the trappings of an
authorized interpreter and enforcer. The Court would give teeth, it was thought, to the Basic
Law’s most innovative provisions.
With minor qualifications, the military governors of the British, French, and American
occupation zones approved the proposed Basic Law on 12 May 1949. The legislatures of the
several states were swift to follow suit. Not then, nor ever since, was the document submitted
for popular ratification. This ran counter to the wishes of the Allies, but reflected the fram-
ers’ fear that a negative vote in Bavaria would thwart the entire project. The Basic Law offi-
cially entered into force just over two weeks after the Council concluded its deliberations.
Forever after, it would carry the date of 23 May 1949, which entered history as the birthdate
of the Federal Republic.
Almost immediately the Basic Law encountered sharp criticism from powerful figures
within the legal elite. One of the most formidable early attacks came from Werner Weber, a
disciple of Carl Schmitt and a prominent professor of public law. Like many other German
academics around the time of the Basic Law’s passage, Weber was returning to the academy
after being dismissed at War’s end for alleged complicity with the Nazi regime. Weber, who
lost his academic chair in 1945 because of his membership in the Nazi party and in the SA,
assumed a professorship in Gӧttingen during the summer of 1949. His inaugural lecture,
delivered on 18 June 1949, was a blistering attack on the newborn Basic Law.
The central accusation of Weber’s polemic was that the framers had drawn exagger-
ated lessons—and the wrong lessons—from the demise of the Weimar Republic. ‘Like
the ghostly apparition of one unhappily departed after a life of failure’, Weber began, ‘the
Weimar constitution pervaded and oppressed the Bonn deliberations’.62 Instead of crafting
a charter drawing on the many virtues of the Weimar constitution—which Weber called
the last gasp of the great European Liberal–Democratic constitutional movement of the
nineteenth century63—the Council had devoted its energies to exorcising suppositious
Weimar demons.64 The result, Weber complained, was a document that gave a nominal
show of humility—calling itself a mere ‘Basic Law’—but that in substance paraded ‘in the

61 See Article 100(1) GG.

62 Werner Weber, Weimarer Verfassung und Bonner Grundgesetz (Fleischer 1949). 63 ibid 6–7.
64 ibid 5.
 Prologue xxvii

character of a perfect constitution with all the attendant pretentions’.65 What’s more, the
new charter lacked democratic legitimacy. It was jurists’ law (Juristengesetz), not a people’s
law (Volksgesetz)—and even jurists would have trouble deciphering it.66
Weber’s democratic critique ran deep. Seldom, he said, had a Western constitution arisen
with so little public scrutiny. ‘The great democratic power of public opinion remained
unused and unaddressed’.67 Weber laughed at the preamble’s invocation of ‘the German
people’ and its ‘constitution-giving authority’, a phrase to which Weber appended a paren-
thetical ‘(sic!)’.68 ‘The People’, Weber sneered, had nothing to do with creating the Basic Law
and would have little to do under the Basic Law, which provided ‘no institutional possibility
for the expression of public opinion as a whole, unmediated, in its relationship, for instance,
to a statesman or to a given constitutional-political fact’.69 There was, under the Basic Law,
only one thing left for the people to do: elect the Bundestag.70 The real power in the new state
lay elsewhere. For the rest, the people’s influence was ‘fully and without exception mediated
by political parties’.71 Parties would, ‘in all organs and functions, monopolise the power of
political decisions’.72
Worse still, political parties would themselves be mediated and constrained by courts.
Weber railed at the ‘unheard-of proliferation of elements of the judicial state [justizstaatli-
cher Elemente]’.73 Already worried at the disempowerment of the president, Weber was
appalled that the power of suspending fundamental rights had been transferred to the
Constitutional Court.74 That Court, Weber feared, would be well-nigh omnipotent. ‘There
is hardly an essential process of constitutional life’, he marveled, ‘that cannot become
embroiled in a proceeding before the Federal Constitutional Court’.75 By creating such a
Court, the Basic Law’s framers had thrown open the gates to ‘the double danger of a juridi-
fication of politics and the politicisation of justice’—and this ‘despite various warnings and
terrifying precedents from earlier times’.76
It was not entirely clear which ‘precedents’ Weber had in mind. But the source of the
‘warnings’ was obvious. In connection with constitutional judicial review, the terms
‘juridification of politics’ and ‘politicisation of justice’ stemmed from the Weimar pen of
Weber’s mentor, Carl Schmitt.77 And it was in a thoroughly Schmittian vein that Weber
closed his lecture. ‘The perfected judicial-state ideal system of the Bonn Basic Law’ had
naively ignored the relentless and implacable realities of the political. It was an ‘old truth’,
Weber noted, ‘that responsible action and political daring, not judicial pronouncements,
determine the destiny of nations’.78 No judicial fiat could provide ‘work, bread, clothing,
housing’, and protection against ‘the enemy’. The Basic Law’s ultimate failure was that it
viewed life ‘in reaction to the immediate past’, and with insufficient attention to ‘the future
of the German people’.79
It was a ferocious philippic. Carl Schmitt himself, who in his diary had mocked the Basic
Law’s framers as ‘the poor little men in Bonn’ and said that he read the finished constitu-
tion ‘with the amusement of an all-knowing old man’, expressed astonishment at ‘the vehe-
mence with which Werner Weber criticises the Opus’.80 More moderate voices in the legal
academy answered Weber by suggesting that public law scholars, rather than polemicize
against the new state, should seek creative solutions to its problems.81 Yet moderates, too,

65 ibid 10–11. 66 ibid 12. 67 ibid 9. 68 ibid 11. 69 ibid 16. 70 ibid.

71 ibid 17. 72 ibid 73 ibid 25. 74 ibid 23–24. 75 ibid 25. 76 ibid 26.
77  Carl Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’ in Carl Schmitt, Verfassungsrechtliche Aufsӓtze

aus den Jahren 1924–1954. Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) 63.
78  Weber (n 62) 28. 79  Weber (n 62) 29.
80  In Michael Stolleis, Geschichte des ӧffentlichen Rechts in Deutschland 1945–1949, vol 4 (CH Beck 2012) 131.
81  See, e.g., Georg Strickrodt, ‘Die notwendige Position der Staatsrechtslehre’ (1952) 7 JuristenZeitung 385.
xxviii Prologue

predicted an enduring transfer of power to the judiciary.82 But neither Weber nor his detrac-
tors appreciated how enduring and extensive that transfer would prove to be. Whether fear-
ful or favourable, critical or commendatory, all contemporary assessments of the Basic
Law’s durability and of the Court’s future impact proved understated. No one foresaw what
was coming, or how swiftly it would come.

82  See, e.g., Hans-Peter Ipsen, Über das Grundgesetz. Rede gehalten anlӓβlich des neuen Amtsjahres des Rektors

der Universitӓt Hamburg am 17. November 1949 (Selbstverlag der Universität 1949).

 Introduction

There is hardly a single essential development in our constitutional life that cannot
become embroiled in a proceeding before the Federal Constitutional Court…. Thus are
the gates thrown open, despite various warnings and terrifying precedents from earlier
times, to the double danger of a juridification of politics and a politicization of justice.
—Werner Weber (1949)1

Tell me your attitude toward constitutional justice, and I will tell you your conception
of the constitution itself.
—Werner Kӓgi (1945)2

In the Beginning
Six years after the self-immolation of Adolf Hitler and the total surrender of his millen-
nial Reich, there was established in the sleepy south-west city of Karlsruhe one of the most
powerful and influential fundamental rights tribunals in the history of the world. No
one present at the creation of the German Federal Constitutional Court saw it coming.
Among the scores of constitutional tribunals formed across the globe since the end of the
Second World War, the German Court has been, by many estimates, the most successful.
By nearly all accounts, it has become the most powerful.3 Now in its seventh decade, the
self-proclaimed ‘Guardian of the Constitution’ (Hüter der Verfassung) sits secure at the
centre of the German legal and political order. At home and abroad, the Court is regarded as
a bastion of fundamental rights and an emblem of liberal–democratic stability. Few crucial
questions in German politics escape the Court’s review. Tocqueville observed long ago that
in Jacksonian America, most political questions sooner or later became judicial questions.4
In contemporary Germany, nearly all major political questions eventually become consti-
tutional questions.
Frequently they begin as constitutional questions. Political controversy in Germany
often assumes a constitutional colouring from the outset. Parliamentary debate in Berlin
is conducted with an eye towards constitutional review in Karlsruhe. The terms of policy
discussion are shaped by canons of Constitutional Court jurisprudence. Across the gamut
of state activity, the Court supplies the standards of what is permissible and what is pro-
scribed, of what is excessive and what is required.5
These standards are derived, ostensibly, from the constitution itself. But they increas-
ingly draw upon the thick tradition of the Court’s own precedents—precedents cited not
by name or date, but merely by page number and volume in the Court’s official reports—a
practice that seems to strip precedents of historical context and endow them with an aura

1╇ Werner Weber, Weimarer Verfassung und Bonner Grundgesetz (Fleischer 1949) 25–26.
2╇ Werner Kӓgi, Die Verfassung als rechtliche Grundordnung des Staates (Polygraph 1945) 147.
3╇ In every comparative sense, writes one leading scholar, the Federal Constitutional Court is ‘an extraordinar-

ily powerful and impactful court’. Matthias Jestaedt, ‘Phӓnomen Bundesverfassungsgericht. Was das Gericht zu
dem macht, was es ist’ in Matthias Jestaedt and others, Das Entgrenzte Gericht. Eine kritische Bilanz nach sechzig
Jarhen Bundesverfassungsgericht (Surkamp 2011) 149.
4╇ Alexis de Tocqueville, De la démocratie en Amérique, vol 1 (first published 1835, Laffont 1986) 258.
5╇ On the Court’s role as a ‘standard-setter’, see Oliver Lepsius, ‘Die maβstabsetzende Gewalt’ in Das Entgrenzte

Gericht (n 3) 159.
xxx Introduction

of timeless principle—chapter and verse in an ancient code. The Court has been elaborating
constitutional norms, both textual and doctrinal, for more than sixty years. In the process,
it has become a judicial lawmaker par excellence. In most domains of domestic governance,
and even in spheres of foreign policy, the roads of German rule lead one and all to Karlsruhe.
Naturally, the Court’s accumulation and exercise of political power has provoked sig-
nificant criticism; but such criticism has been consistently overwhelmed by remarkable
levels of popular esteem and public support. The Constitutional Court has always been and
remains one of the most trusted institutions of the German state. Popular acceptance of
the Court has consistently surpassed—often it has far surpassed—approval of the Federal
Republic’s other constitutional organs:  the two Houses of Parliament (Bundestag and
Bundesrat), the federal government, and the federal president.6 Support for the Court has
even increased at times when the Court’s immense power might have seemed most obvious
and most ominous.
Such was the case in autumn 2012. Americans had spent months speculating breathlessly
how their own Supreme Court might vote on a constitutional challenge to President Barack
Obama’s historic healthcare reform; but the rest of the world turned its attention to a dif-
ferent judge in a different court in a different case. That judge was Andreas Voβkuhle; that
court the German Federal Constitutional Court; and that case a constitutional challenge to
the Bundestag’s approval of the European Stability Mechanism (ESM).
Voβkuhle professes not to love the limelight. A tall man with a rounded face, complacent
eyes, bookish glasses, and a benevolent smile, Voβkuhle has the look of a man content to
spend his days in patient, pleasant academic plodding. He is indeed an academic, but his
academic career was meteoric rather than plodding. He finished his second dissertation at
age thirty-four; became a full professor at Freiburg University the following year; and in
2008, at age forty-four, became the youngest rector in the university’s history. His tenure
as rector, however, was brief. In May 2008, the Bundesrat made Voβkuhle vice president
of the Constitutional Court, with the understanding that he would later become—as in
March 2010 he did become—the youngest president, or chief justice, in the Court’s history.
In February 2012, Angela Merkel, the chancellor, offered Voβkuhle the position of federal
president after the embattled Christian Wulff resigned. Voβkuhle mulled the matter over,
but ultimately declined. As chief justice of the Constitutional Court, quipped the monthly
magazine Cicero, Voβkuhle was already the country’s ‘real head of state’.7
In the months following his refusal to become federal president, Voβkuhle became
the most visible chief justice in the Court’s history. He assumed centre stage, not only of
German politics, but of European politics—even of global politics. What was at stake in the
constitutional challenge to the ESM was nothing less than the survival of the Euro on one
hand and, on the other, the identity and self-understanding of postwar Germany. Voβkuhle
had gone on record insisting that European integration must not come at the cost of democ-
racy and the rule of law. German citizens must not ‘wake up one morning to discover that
those whom they have elected have nothing left to decide’.8 There were limits, Voβkuhle
stressed, to how much ‘Europe’ Germany’s constitution could allow. If Germany wanted

6  On how the Court crowned itself a ‘constitutional organ’, and not merely a court of law, see Chapter 1.
7  The cover of Cicero’s April 2012 issue read, ‘Andreas Voβkuhle: The President of the Federal Constitutional
Court is Germany’s true head of state’.
8  In ‘Der Kapitӓn’ Der Spiegel (Hamburg, 10 September 2012) 28. Because this book refers to hundreds of

newspaper articles, the city of publication will not be given in each instance. The sites of publication for those
papers cited most frequently are as follows: Der Spiegel (Hamburg); Die Zeit (Hamburg); Frankfurter Allgemeine
Zeitung (Frankfurt); Süddeutsche Zeitung (Munich); Die Welt (Hamburg and Berlin); Frankfurter Rundschau
(Frankfurt); Christ und Welt (Bonn); Bulletin des Presse- und Informationsdienstes der Bundesregierung (Bonn);
Stuttgarter Zeitung (Stuttgart), and Badische neuste Nachrichten (Karlsruhe).
 Introduction xxxi

to transgress those limits, it would need ‘to give itself a new constitution’, presumably by
plebiscite.9
The ESM pressed the limits of European integration and pressed them hard. Germany’s
leading weekly, Der Spiegel, reported that if the plans went forward, Voβkuhle might be
remembered ‘not only [as] the youngest president of the Constitutional Court of a sovereign
Federal Republic, but also [as] the last’.10 The ESM case seemed to pit Germany’s sovereignty
against Europe’s survival. And the power to decide that question lay in the hands of eight
German judges.
An astonishing share of the German citizenry was pleased that this was so. As the
Court considered the constitutional challenge to the proposed ESM, a banner article in
the Frankfurter Allgemeine Zeitung, Germany’s leading daily, praised the Court as the
nation’s ‘bulwark’.11 ‘In a time of great insecurity’, the article summarized, ‘the Federal
Constitutional Court is becoming an institution that citizens trust to preserve the political
order and national interests. The Court’s prestige [Ansehen] is greater than ever before’.12
Contemporaneous surveys suggested that 82 per cent of Germans were grateful the Court
could annul political decisions. A vast majority thought the Court’s power was growing, but
only 5 per cent thought it too powerful.13 While popular trust in many state institutions was
waning, trust in the Court was growing.14 At the same time, German politicians continued
to worry—as they have always worried—that the Court might dash some treasured legis-
lative or diplomatic achievement. And, at that troubled hour, politicians round the globe
feared that the Court might someday explode the Euro.15 That fear, though the Court later
approved the ESM without qualification,16 lingers on.
This is a book about how the German Constitutional Court came to possess such extraor-
dinary power, and why so many Germans are grateful that it does. How the Court became
so mighty and why so few resist its strength are questions, I contend, that can be answered
only by telling the Court’s story and by situating that story in a broader historical frame.
What follows, then, is a narrative history—one meant to be read from beginning to end.
It is also a public history—a political and societal, rather than a doctrinal and jurispru-
dential, history of the Constitutional Court. It is the story of the Court’s interventions in
postwar (West) German history, and of the (West) German public’s engagement with their
Constitutional Court. This public orientation is reflected both in the book’s periodization
and in the sources on which it relies. Although the book is naturally organized around
the Court’s major decisions (the only way in which a court of law can intervene in his-
tory), it also examines popular and political reactions to those decisions, drawing heavily
on newspaper accounts of major judgments and material from the archives of individual

9 ibid. 10 ibid.
11  ‘Bundesverfassungsgericht. Das Bollwerk’ Frankfurter Allgemeine Zeitung (hereinafter FAZ) (Frankfurt,
21 August 2012) http://www.faz.net/aktuell/politik/inland/bundesverfassungsgericht-das-bollwerk-11863396.
html> accessed 21 September 2013.
12 ibid. 13 ibid.
14  That growth has continued. In May 2014, when Germany celebrated the sixty-fifth anniversary of its

postwar constitution, an Allensbach survey found that 92 per cent of Germans trusted their constitution
and 86 per cent trusted their Constitutional Court. ‘Deutsche schӓtzen das Grundgesetz’ FAZ (Frankfurt, 21
May 2014)  <http://www.faz.net/aktuell/politik/inland/umfrage-zum-verfassungstag-deutsche-schaetzen-
das-grundgesetz-12950505.html> accessed 25 May 2014.
15  See Quentin Peel, ‘Germany’s Judgment Day’ Financial Times (London, 7 August 2012) http://www.ft.com/

cms/s/0/78df7420-dfa5-11e1-9bb7-00144feab49a.html>. The Court’s judgment upholding the ESM gave rise

to a global sigh of relief, as well as deep misgivings. See ‘Germany and the Euro: Yes, but …’ The Economist
(London, 15 September 2012); Bruce Ackerman and Miguel Maduro, ‘Broken Bond’ Foreign Policy (Washington,
17 September 2012).
16  See 135 BVerfGE 317 (2014).
xxxii Introduction

politicians and judges. The account also draws on the rich scholarly literature devoted, since
the Court’s founding, to evaluating its decisions. But it adduces scholarly commentary less
as an exercise in intellectual history than as a means of capturing historical mood.
In a similar way, the narrative’s divisions are linked to major events in the political his-
tory of the Federal Republic, rather than to events internal to the Court itself.17 The one par-
tial exception comes in the book’s first chapter. Chapter 1 begins with the Court’s founding
in 1951 and ends in 1959, just after the Court’s landmark early fundamental rights decisions
and coinciding with Gebhard Müller’s appointment as chief justice. But 1959 also marked
the beginning of the declining fortunes of Chancellor Konrad Adenauer after a decade of
steadily mounting strength. Chapter 2 covers the period from 1959 until the advent in 1969
of postwar West Germany’s first socialist-led government under Chancellor Willy Brandt.
Chapter 3 chronicles the Court’s activity during the ‘Social–Liberal era’, from 1969 to 1982.
Chapter 4 takes the story from the Christian Democrats’ return to power in 1982 through
German reunification in 1990. Chapter 5 deals with the ‘reunification decade’, closing with
the global convulsions that attended the terrorist attacks on the United States in September
2001, and with the Court’s golden jubilee, celebrated that same month.
Each chapter highlights one of the book’s major themes—one explanation of the public’s
acceptance of the Court’s power. Those themes are liberalization, democratization, his-
toricization, integration, and mediation. Obviously, it would be worse than artificial to rel-
egate each theme to a given time period. Naturally, each theme recurs throughout the book.
But the comparative prominence of each theme has shifted across time, and the narrative
seeks to underscore those shifts. Unifying all the themes is a central thesis of this book,
which is that the Court’s remarkable rise and the public’s remarkable trust in the Court
have been the product, not of some persistent national sequacity and deference to authority,
but of the Court’s perceived role in redeeming the country from its authoritarian past and
restoring it to the community of liberal democracies. Accounting for the Court’s popularity
and power requires more than a nuanced historical account of the Court’s meteoric rise in
the postwar Federal Republic. It requires situating the Court within the broader sweep of
German history. The Court’s history is the product of its pre-history; its success the product
of Germany’s failures.

I.╇A Special Path?
The critical dates are 1848 and 1933.18 The former marked a pivotal crossroads in what some
historians have controversially called the German Sonderweg, or special path. In its most
pointed form, the Sonderweg thesis suggested that while other Western nations—primarily
Great Britain and France—had progressed naturally down an evolutionary course

17╇ The common American practice of apportioning Supreme Court history and naming its eras for the ten-

ures of chief justices has even less to recommend it in the German context than in the American. For one thing,
the tenure of the chief justice is often brief. Under the current rules, no justice may serve longer than twelve
years or beyond her sixty-eighth birthday. Only two chief justices—Gebhard Müller (1959–71) and Ernst Benda
(1971–83)—have served full twelve-year terms. What’s more, although the chief justice plays an important
administrative and symbolic role, he or she (there has been one she) casts only one vote and in only one of the
Court’s two Senates, or chambers. The chief justice has little additional influence within her own Senate and none
at all in the other. With rare exceptions, the Court’s chief justices have not been its most influential jurists. The
great justices have often been powerful academics, unfit for administrative duties. Assigning epochal signifi-
cance to the appointment of a new chief justice would convey a false impression.
18╇ Revisionist historians have argued powerfully for a shift in emphasis in the chronology of German histo-

riography from 1933, when the Nazis seized power, to 1941, when they launched the Final Solution. See Helmut
Walser Smith, The Continuities of German History:  Nation, Religion, and Race Across the Long Nineteenth
Century (Cambridge University Press 2008).
 Introduction xxxiii

culminating in liberal–democratic modernity, Germany had gone its own way, Â�describing
a disastrous career of illiberalism, authoritarianism, military aggression, dictatorship,
total warfare, and the unimaginable horrors of the Holocaust. Germany was the ‘belated
nation’ (Verspӓtete Nation), united not in 1848 as the culmination of a liberal–national con-
stitutional moment, but in 1871 under the imperial auspices of Prussia and its indomitable
prime minister, Prince Otto von Bismarck. Bismarck was utterly contemptuous of the failed
effort to frame a united German constitution in 1848. He scorned the National Assembly
that met in Frankfurt to craft a united German constitution as a utopian ‘parliament of
professors’ (Professorenparlament)—a convocation of idealists and dreamers who mired
themselves in abstract orations on first principles and frittered the momentous occasion in
endless disquisitions on the fine points of fundamental rights. It was an assembly given to
words, not deeds. What Germany needed, and what Bismarck himself was only too willing
to supply, was a forceful statesman who could seize the historical moment with the power
of decisive action.

A.╇The turning point at which Germany failed to turn?

No such action was forthcoming in 1848/49. When the National Assembly’s emissaries pre-
sented the draft constitution to Prussia’s King Frederick William IV with a request that
he become the united Reich’s first Kaiser, that monarch declined the offer with princely
disdain. Frederick William was already King of Prussia by divine right and God’s grace.
He neither needed nor desired the commission of a constituent body that would make him
Kaiser of all Germany. In April 1849, the National Assembly issued its constitution all the
same, but it was a dead letter—merely declaratory and wholly ignored. In retrospect, the
British historian, AJP Taylor, famously (and controversially) scored 1848/49 as a time when
‘German history reached its turning-point and failed to turn’.19 The first great effort to fash-
ion for Germany a liberal, democratic constitution with a comprehensive catalogue of bind-
ing, judicially enforceable rights had failed spectacularly. Seven decades would transpire
before the next attempt.
Meanwhile, bitterly disappointed liberals consoled themselves as they could. Until the
debacle of 1848/49, German liberals—who stemmed, by and large, from the professional
and mercantile middle class—had championed liberal values and political participation
as an inseparable unity, a coherent and indivisible ideological whole. The rule of law and
popular self-government were, for most liberals, intimate partners in a common project.
After 1848, they parted paths. Liberals who had hoped for a constitutional democracy set-
tled for a state based on the rule of law—for a Rechtsstaat, in the evocative, untranslatable
German phrase. In the latter half of the nineteenth century, middle-class liberals gave up
their quest for political participation and self-government against the princes, and sought
instead to secure and protect fundamental liberties in the private and economic sphere.
Denied a liberal democracy, the middle classes pursued a liberal Rechtsstaat. With time,
they made a virtue of necessity—savouring the stability of the rule of law while revelling in
the cultural and diplomatic triumphs of the German Reich. Having settled for the rule of
law when they could not also have democracy, many Germans came to prefer the rule of law
over democracy. The preference had a long shelf life. Its influence endures today. After the
First World War, the preference deepened.

19╇ AJP Taylor, The Course of German History: A Survey of the Development of German History since 1815, 2nd

edn (Methuen 1961) 69.

xxxiv Introduction

B.╇Descent into barbarism
Germany’s first national experiment with democracy was a tempestuous one. The Weimar
Republic was rocked by a carousel procession of governments rising and falling, of coali-
tions forming and collapsing, of parliamentary deadlock and dissolution. The first German
Republic had twenty governments in fourteen years. Carl Schmitt, one of Germany’s
most powerful legal minds, delivered a devastating critique of parliamentary democ-
racy in his 1923 essay, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (‘The
Intellectual–Historical Position of Contemporary Parliamentarism’). Modern parliamen-
tary governance, in Schmitt’s view, was a sham, its pretence of representative legitimacy and
rational deliberation a farce. Members of Parliament were operatives of political parties,
not representatives of the people. Modern parliaments did not deliberate and decide; they
postured in public and made deals behind closed doors. They were incapable of the vigorous
decision-making essential to a stable modern state.
To many German minds, the ten years that followed the publication of Schmitt’s stric-
tures gave colour to his critique. Narrow partisan bickering and endless regime changes
fostered deadlock and disruption against a backdrop of world economic depression. The
early 1930s were a grim and fearful time. With each passing election the electoral for-
tunes and parliamentary presence of Adolf Hitler’s National Socialists grew dramatically.
In July 1932, the Nazi vote rose to 37.3 per cent—nearly sixteen percentage points better
than the second-place Social Democrats (SPD). In January 1933, Reich President Paul von
Hindenburg asked Hitler to assume the chancellorship and form a government.
Immediately the new regime set about dismantling the Rechtsstaat and replacing it with
its opposite. The Third Reich was an Un-rechtsstaat—an arbitrary dictatorship marked by
the wholesale suspension of fundamental rights, the systematic recasting of German law in
the image of Nazi ideology, the methodical persecution of ethnic minorities and political
opponents, and, in the regime’s final years, aggressive warfare and industrial genocide on
a staggering, sickening scale. The consequences for Germany—politically, economically,
socially, morally—were devastating.
In the aftermath of total war and unconditional surrender, most Germans were more
focused on their own immediate needs and their own recent sufferings than on the vic-
tims of their fallen government or their own complicity in that victimization. The German
people on the morning after the apocalypse were more interested in stability than intro-
spection, in search more of repose than of redemption. As the political scientist Wilhelm
Hennis, then a soldier returning from active duty, later recalled: ‘for working through the
past [Vergangenheitsbewӓltigung] my generation had neither inclination nor time’.20 Having
endured and sometimes embraced a season of total politicization, Germans were weary of
politics and wary of politicians, mistrustful of ideologies and antagonistic toward political
parties. Most were more eager for the return of basic legal protections and elementary eco-
nomic survival than for a revival of democratic participation and popular self-government.
Their ancestors pursued the Rechtsstaat on its own when they couldn’t combine it with
democracy. Now many longed for the Rechtsstaat’s return, but cared little for democracy or
were even hostile to it. This was a posture that endured beyond the founding of the Federal
Republic.

20╇ Wilhelm Hennis, Politikwissenschaftliche Abhandlungen: Regieren im modernen Staat, vol 1 (Mohr Siebeck

1999) 398.
 Introduction xxxv

II.╇ Liberalization, Democratization, and Legitimacy

The political culture in which the Federal Constitutional Court took root, then, was a
pre-democratic culture marked by a long German tradition that prized the rule of law
over democracy.21 Independent of that tradition, the rule of law was regarded by many
in the Federal Republic’s founding generation as a necessary precondition of democracy,
not a limitation or constraint. This perspective redounded to the benefit of a neophyte
Constitutional Court that many perceived as a harbinger and defender of democracy, not
as a threat to it.22 Modern students of the Court have hailed it as a ‘midwife of the second
German democracy’.23 ‘It became’, one commentator has written, ‘the strict but benevolent
guardian of an immature democracy that didn’t quite trust itself’.24

A.╇Guardians of the constitution

The German word for ‘guardian’ in the statement just quoted is Vormund, a term used to
designate the legal guardian of a minor child. But there is another German term, central
to the Court’s history and self-understanding, which also translates as ‘guardian’: Hüter.
In a 1952 manifesto the Court proclaimed itself Hüter der Verfassung—Guardian of the
constitution.
It was a redolent phrase. During the 1920s and 1930s German legal theorists fiercely
debated who should stand as ‘guardian’ of the embattled Weimar constitution. ‘Who will
protect the constitution against its enemies?’ was the pointed query of Carl Schmitt. Schmitt’s
answer was the Reich President, along with the public administration—the civil service.25
Hans Kelsen, Schmitt’s most formidable antagonist, championed constitutional judicial
review.26 In the short run, Schmitt seemed to prevail. In the long run, the cup went to Kelsen.
As parliamentary governance in the Weimar Republic dwindled into chaos and instabil-
ity, the Reich President—who enjoyed the prestige of plebiscitary appointment—ruled the
land by emergency decree. Ultimately, as noted, it was Reich President von Hindenburg
who invited the Nazis to assume power. This was the fateful precedent that led the Federal
Republic’s founders to eschew plebiscites and weaken the presidency. On the other hand,
the framers erected a powerful Constitutional Court to police the constitution’s boundaries
and enforce its basic rights.

B.╇Fundamental rights as a precondition for democracy

No one foresaw quite how powerful that court would become. In the Court’s early years, its
power was accepted, and even applauded, largely because the Court’s role in enforcing fun-
damental rights and guarding constitutional structures was seen as a precondition to the

21╇ See Christoph Schӧnberger, ‘Anmerkungen zu Karlsruhe’ in Das Entgrenzte Gericht (n 3)  43. See also

Brun-Otto Bryde, ‘Die Rolle der Verfassungsgerichtsbarkeit in Umbruchsituationen’ in Joachim Jens Hesse
and others (eds), Verfassungsrecht und Verfassungspolitik in Umbruchsituationen (Nomos 1999) 197–210;
Ludger Helms, ‘Ursprünge und Wandlungen der Verfassungsgerichtsbarkeit in den konsolidierten liberalen
Demokratien’ (2006) 53 Zeitschrift für Politik 50, 68.
22╇ I am indebted to Dieter Grimm for this insight. 23╇Schӧnberger (n 21) 27. 24╇ibid 43.
25╇ Carl Schmitt, Hüter der Verfassung (JCB Mohr 1931).
26╇See Hans Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (1929) 5 Verӧffentlichung der

Vereinigung der Deutschen Staatsrechtslehrer 30; Hans Kelsen, Wer soll der Hüter der Verfassung sein? (JCB
Mohr 1931). Kelsen had some practical experience with judicial review as a justice of the short-lived Austrian
Constitutional Court.
xxxvi Introduction

successful establishment of a second German democracy. Liberalization, many thought,

must precede democratization.
In its first two decades, the Court contributed to both. It vindicated the legitimacy of
political and parliamentary opposition,27 invigorated the position of political parties, and
fortified rights of speech and expression. It exalted fundamental rights as the crown jew-
els of the constitutional order. In doing so, it reconceived such rights as objective values
arrayed in a systematic order that pervaded all fields and fora of positive law.28 The Court
constitutionalized—and thereby liberalized—all of West German law. In the process, it
helped liberalize West German society.29 And, by helping to fulfil preconditions of dem-
ocratic governance, the Court hastened the democratization of West German political
culture.
The Court benefited institutionally from having been planted in pre-democratic soil.30 In
the jaded, suspicious environment of postwar West German politics, and in the legitimacy
vacuum left by the discredited and departed elites of the fallen regime, the Karlsruhe jus-
tices emerged as neutral, non-partisan experts—stable, trustworthy guardians of a new and
fledgling order.31 One of the Court’s greatest early contributions was to help democratize
the culture that surrounded it. Ironically, it often did so by constraining democratically
elected actors. But the net gain to democracy was positive, and the net gain to liberal values
and fundamental rights was enormous.
Such, at least, is the claim advanced in the first two chapters of this book. It was not a lin-
ear progression, nor an uninterrupted symphony of sweetness and light. The Court moved
forward by fits and starts. Some landmark early judgments struck contemporary observers
and later critics as illiberal and undemocratic. The Court banned two political parties as
unconstitutional, even as it vindicated the constitutional status of other parties. The Court
outlawed regional plebiscites, even as it freed the channels of democratic discourse in the
public sphere. Even so, by 1970, it was possible for a leading public law scholar to note that
‘[t]â•„he jurisprudence of the Federal Constitutional Court has, as we all know, fostered the
development of a true democratic understanding in the Federal Republic—not least in the
sphere of public opinion. There are decisions of the Federal Constitutional Court that, as
harbingers of the free Rechtsstaat and of democracy, were years ahead of public opinion’.32

C.╇Democracy and the rule of law

In its early jurisprudence, then, the Court bolstered both democracy and the rule of
law—and it helped reunite the two in the West German mind. What’s more, the democracy-
and liberty-enforcing strain in the Court’s decisions helped counterbalance to the consti-
tution’s (and the Court’s own) protection of the democracy principle through repressive

27╇ See Klaus Stüwe, ‘Der “Gang nach Karlsruhe”. Die Opposition im Bundestag als Antragstellerin vor dem

Bundesverfassungsgericht’ (1997) 28 Zeitschrift für Parlamentsfragen 545; Klaus Stüwe, Die Opposition im
Bundestag und das Bundesverfassungsgericht (Nomos 1997).
28╇ See 6 BVerfGE 32 (1957); 7 BVerfGE 198 (1958).
29╇ See Ulrich Herbert, ‘Integration der jungen Republik durch Verfassungsrecht?’ in Thomas Henne and

Arne Riedlinger (eds), Das Lüth-Urteil aus (rechts-) historischer Sicht: die Konflikte um Veit Harlan und die
Grundrechtsjudikatur des Bundesverfassungsgerichts (Berliner Wissenschafts-Verlag 2005) 85; Brun-Otto Bryde,
‘Der Beitrag des Bundesverfassungsgerichts zur Demokratisierung der Bundesrepublik’ in Robert Christian
van Ooyen and Martin H.W. Mӧllers (eds), Das Bundesverfassungsgericht im politischen System (Verlag für
Sozialwissenschaften 2006) 321–31; Schӧnberger (n 21) 27.
30╇Schӧnberger (n 21) 43. 31╇ibid 44.
32╇Wilhelm Karl Geck, ‘Diskussionsbemerkung’ in 29 Verӧffentlichung der Vereinigung der Deutschen

Staatsrechtslehrer 113 (1970).

 Introduction xxxvii

means—means that were in any case relativized and softened by the Court’s steady applica-
tion of the proportionality principle.33
If, in all of this, the Court was ahead of its time, it also operated largely outside of the
public’s awareness. The Court won great popular acclaim for certain celebrated decisions,
such as its invalidation (in 1961) of Chancellor Konrad Adenauer’s plans for a second public
television network—a network manifestly calculated to serve the sitting government.34 But
for the most part, and particularly with regard to the landmark doctrinal decisions that did
so much to expand the Court’s jurisdiction and enhance the scope of its review, the public
paid little attention to the Court during the long era of Christian Democrat rule from the
founding of the Federal Republic to the accession of Willy Brandt’s Social–Liberal coalition
in 1969.35 The Court’s early accumulation and exercise of power was not so much embraced
by the public as it was opaque to the public.
As late as 1974, no respondent to an Allensbach survey thought the Court exerted too
great an influence on West German politics.36 This might suggest more ignorance than
endorsement; but what the public knew of the Court it largely liked. And what it did not
know, it would learn to appreciate later on. The Court’s early work—its reinforcement of
democratic values and institutions, its explicit anti-Nazism, its receptivity to citizen efforts
to vindicate fundamental rights—provided a reference from which appreciative observers
could defend the Court when it later became embattled.

III.╇ History and Legitimacy

With the advent of a reformist government in 1969, the Court was placed, for the first time,
in a conservative posture. Hitherto the Court had been ahead of the times; the times now
caught up. Willy Brandt, the new chancellor, came to power on the strength of the slim-
mest of parliamentary majorities. But he spoke as one commissioned by ‘We the People’
to proclaim a new dispensation. In his inaugural message to Parliament, Brandt famously
vowed to ‘dare more democracy’. The Federal Republic, he announced, had barely begun
its experiment in democratic self-government. Hitherto the country had thought as a child
and spoken as a child. It had now arrived at democratic maturity. It was time to put away
childish things. The Federal Republic was emerging from its adolescence. Brandt’s ambi-
tions for its adulthood knew no bounds.
Brandt’s proclamation of a new constitutional moment put the Constitutional Court in
an awkward position. The promise of a newer, bolder, more daring democracy endangered
the Court’s self-understanding: Mature individuals don’t need guardians.
In the years that followed, the government’s commitment to sweeping reform and the
Court’s devotion to objective constitutional values clashed with mounting frequency and
intensity. The Court demolished or defanged prized initiatives, and government officials
cried foul. The resultant crisis was the severest the Court had faced since its founding.
Various factors—some external to the Court, some not—allowed the Court to weather
the storm. For one thing, the reformist energy of the Social–Liberal government stead-
ily declined—particularly after the world oil crisis of 1973, which sobered reformers’ san-
guinity; and Brandt’s resignation in turmoil in 1974, which left them without a leader. The

33╇ See Michael Stolleis, Geschichte des ӧffentlichen Rechts in Deutschland, vol 4 (CH Beck 2012) 325.
34╇See Gary S.  Schaal, Sabine Friedel, and Andreas Endler, Die Karlsruher Republik. Der Beitrag des
Bundesverfassungsgerichts zur Entwicklung der Demokratie und zur Integration der bundesdeutschen Gesellschaft
(Stiftung Mitarbeit 2000) 92.
35╇ibid 87. 36╇ibid 100.
xxxviii Introduction

Court’s crisis continued to mount even after these events, but the flow of dramatic reforms
into the Court’s docket steadily ebbed. In addition, the Court itself displayed renewed def-
erence and caution in its 1979 approval of a major labour law reform.37
But beyond the partial backtracking of both sides, there was another ironic factor at play.
The Court’s ongoing clash with the federal government brought unprecedented attention
to the Court as an institution—to its structure, its administration, its jurisprudence, and
its history.
The last element named was particularly significant. Fierce criticism of the Court’s
political interventions led some observers to highlight the Court’s historical contribu-
tions. One might quibble, said the Court’s defenders, with a given decision on a highly
politicized issue; but there could be no gainsaying the Court’s historic role in nurturing a
liberal–democratic Rechtsstaat in the early Federal Republic. The Court had protected fun-
damental rights robustly, and had secured the essential preconditions of democracy. It had
helped West Germany rise from the shadows of Nazism and assume its place morally—not
just economically—among the world’s liberal democracies. This was reason enough, the
argument ran, for citizens to swallow the odd, unpalatable decision.
The Court’s intermediate crisis of the mid-1970s—chronicled in Chapter 3—marked a
turning point in its history. The Court’s survival of that crisis, and swift subsequent ascent
to unprecedented levels of popular regard, is a product and illustration of another central
thesis of this book—namely, that a Court whose power was accepted initially because it had
helped ensure the preconditions of liberal democracy came to be regarded as itself a pre-
condition of liberal democracy. The observation that the Court had helped to democratize
a pre-democratic political culture led, in the fullness of time, to a conviction that the Court
was a constitutive element of the democratic political culture it helped create. The key to the
Court’s success was the public’s embrace of the following syllogism:
No democracy without fundamental rights (major premise);
No fundamental rights without constitutional justice (minor premise);
No democracy without the Constitutional Court (conclusion).

This is the secret of the Court’s staggering popularity in the face of the obvious restraints it
places on democratic self-governance and political freedom of action. It is the secret of the
Court’s survival of one crisis in the mid-1970s and of another in the mid-1990s. The syllo-
gism may offend as a matter of logic.38 But, as a good lawyer once said, the life of the law has
not been logic; it has been experience.

IV.╇ Constitutional Justice and Societal Integration

As noted, the Court not only survived its mid-1970s crisis, but rose swiftly thereafter to
unmatched levels of trust and esteem.39 In 1982, a new coalition came to power under the
leadership of Helmut Kohl, a Christian Democrat. The Court had fewer occasions to clash
with a conservative than with a reformist government. But the Court in the early Kohl era

37╇ See 50 BVerfGE 290 (1979).

38╇ For a sharp critique of the notion that fundamental rights protection is a sufficient source of the Court’s
legitimacy, see Christoph Mӧllers, ‘Legalitӓt, Legitimitӓt und Legitimation des Bundesverfassungsgerichts’ in
Das entgrenzte Gericht (n 3) 344–50.
39╇ As of 1984, nearly 70 per cent of West Germans reported that they trusted the Court. See Hans Vorlӓnder

and André Brodocz, ‘Das Vertrauen in das Bundesverfassungsgericht. Ergebnisse einer reprӓsentativen
Bevӧlkerungsumfrage’ in Hans Vorlӓnder (ed), Die Deutungsmacht der Verfassungsgerichtsbarkeit (Verlag für
Sozialwissenschaften 2006) 264.
 Introduction xxxix

also benefited, as discussed in Chapter 4, from its traditional roles as a motor of societal
integration and check on partisan political power.
Rudolf Smend, a prominent Weimar-era legal theorist and a kind of patron saint to the
early Constitutional Court, argued as early as the 1920s that constitutions and constitution-
alism should foster political and societal integration.40 The notion was not, in its original
formulation, a liberal one (Smend harboured an early admiration for Italian fascism), nor
was it a reflection on the role of constitutional courts.41 But the integration thesis, applied to
the Constitutional Court and its jurisprudence, has had tremendous staying power.42 From
very early in the Court’s history, observers have contended that the Court plays or should
play an integrative role in the society and politics of the Federal Republic.
What exactly is meant by integration has been as elusive as it has been controversial.43
Conceptually, the notion is vague. It can mean all things to all observers. In practice, it can
lure the Court afield from the tangible business of deciding concrete cases. But there can be
no question that the Court has often acted as arbiter of social and political conflict. Many
citizens now expect the Court to exert an integrative influence. The Court has been most
popular when its integrative role has been most pronounced. One such moment fell in the
early- and mid-1980s, when the Court’s approval ratings reached historic highs.
The Court’s integrative role was on prominent display in several decisions responding
to petitions from the environmentalist–pacifist Green Party, the first new party to enter
Parliament since the late 1940s. The Greens were not uniformly successful in their trips to
Karlsruhe, but their repeated complaints and occasional victories helped link the new party
to the constitutional order of the Basic Law. At the same time, the Court won spectacular
popular affection in 1983, when it annulled a federal census law that only the Greens had
opposed.
Throughout the 1980s, the Court also benefited from its contrast with traditional pol-
iticians and established political parties. Even before the Kohl era began, many observ-
ers complained of the supreme power of political parties. Many saw the so-called ‘Party
State’ (Parteienstaat) as symptomatic of a legitimacy crisis in parliamentary democ-
racy.44 In the years following the Court’s Census judgment, the Federal Republic was
racked by a sequence of parliamentary scandals that affected all major parties. Traditional
German suspicion of parties and politicians rekindled. One of the era’s watchwords was
Politikverdrossenheit—roughly (and weakly) ‘disenchantment with politics’.45 Gloom
about the country’s politics fostered gratitude for the constitutional guardians who kept

40 See Rudolf Smend, ‘Verfassung und Verfassungsrecht’ (1928) in Rudolf Smend, Staatsrechtliche

Abhandlungen und andere Aufsӓtze, 2nd edn (Duncker and Humblot 1968) 89.
41  See Christoph Mӧllers, Der Staat als Argument (CH Beck 2011) (especially ­chapter 4).
42  For a comment on the theme from the Court’s then chief justice, see Jutta Limbach, ‘Die Integrationskraft

des Bundesverfassungsgerichts’ in Jutta Limbach, Im Namen des Volkes:  Macht und Verantwortung der
Richter (Deutsche Verlags-Anstalt 1999) 157. See also Gary Schaal, Integration durch Verfassung und
Verfassungsrechtsprechung? Über den Zusammenhang von Demokratie, Verfassung, und Integration (Duncker
and Humblot 2000); Ulrich Haltern, ‘Integration als Mythos. Zur Überforderung des Bundesverfassungsgerichts’
(1997) 45 Jahrbuch des ӧffentlichen Rechts 31; Ulrich Herbert, ‘Integration der jungen Republik durch
Verfassungsrecht?’ in Thomas Henne and Arne Riedlinger (eds), Das Lüth-Urteil aus (rechts-)historischer
Sicht:  die Konflikte um Veit Harlan und die Grundrechtsjudikatur des Bundesverfassungsgerichts (Berliner
Wissenschafts-Verlag 2005) 85.
43  See Ulrich R. Haltern, ‘Integration als Mythos—zur Überforderung des Bundesverfassungsgerichts’ (1997)

45 Jahrbuch des ӧffentlichen Rechts der Gegenwart 31.

44  See Michael Stolleis, ‘Parteienstaatlichkeit—Krisensymptome des demokratischen Verfassungsstaats?’

(1986) 44 Verӧffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 41.

45  See, e.g., Adolf M. Birke (ed), Politikverdrossenheit: der Parteienstaat in der historischen und gegenwӓrtigen

Diskussion: ein deutsch-britischer Vergleich (KG Saur 1995); Jürgen Rüttgers, Dinosaurier der Demorkatie: Wege
aus Parteienkrise und Politikverdrossenheit (Hoffmann und Campe 1993).
xl Introduction

politicians in check. The public sometimes felt closer to the justices, whom they did not elect,
than to Members of Parliament, whom they did elect. Richard von Weizsӓcker, the highly
regarded federal president, spoke for many when he described the Court as a ‘devoutly
desired supra-partisan oasis’.46
The Court’s popularity in the 1980s was also bolstered by its muscular enforcement of
rights of public protest. The early 1980s witnessed the hotly controversial placement by
the North Atlantic Treaty Organization (NATO) of short-range nuclear missiles on West
German soil. The placement unleashed protests that raised vexing questions about lim-
its on the rights of protest and assembly. The Court answered many of these questions in
a manner that expanded or reinforced protester rights. This was a major contribution to
democratic culture in a country whose constitution provided few formal opportunities for
the vox populi to make itself heard.

V.╇ Mediating the Conflicts of German Reunification

The enormous protest movements in West Germany during the early 1980s were calm com-
pared to the storms unleashed at decade’s end to the East of the inner-German border.
The fall of the Berlin Wall, the collapse of the communist regime in East Germany, and
the reunification of Germany’s divided halves was the central constitutional event of post-
war German history and the defining public experience of nearly every German who lived
through it. But although reunification answered one incarnation of the ‘German Question’
with an exclamation point, it also raised a new and insistent version. How would the world
respond to a powerful, united Germany? How would united Germany respond to itself?
These questions had multiple ramifications, many of them constitutional. In sundry
shapes and various forms, the aftermath and implications of reunification made their way
before the Constitutional Court.47 The reunification era tested and fused two of the Court’s
traditional functions: correcting the German Sonderweg and integrating German society.
German division was both a by-product and a phase in Germany’s putative special path,
and reunification posed special problems of societal integration. The Court played a central
role in stabilizing liberal constitutional democracy in united Germany and in mediating
conflicts between the country’s sections. This dual role is the focus of Chapter 5.
The political structure of reunification exacerbated its integrative challenge. Germany’s
sections united, not through the combined promulgation of a new constitution, but
through the East German states’ accession to an enlarged Federal Republic. This accession
was effected, moreover, not by popular referendum but by state legislatures. In March 1990,
the East German citizens who ousted the Socialist Unity Party of Germany (Sozialistische
Einheitspartei Deutschlands, or SED) regime and toppled the Berlin Wall cast a clear vote
for reunification, but they were otherwise excluded from deliberations about their con-
stitutional future. In some of the most stirring political images of the twentieth century,
East German protesters had chanted ‘We are the People!’, and later ‘We are one People!’
But ‘We the People’ played little role in shaping the constitutional structure of German
reunification.

46╇ Richard von Weizsӓcker, Richard von Weizsӓcker im Gesprӓch mit Gunter Hofmann und Werner A. Perger

(Eichborn 1992) 158–59.
47╇ See Hans Meyer, ‘Die Wiedervereinigung und ihre Folgen vor dem Forum des Bundesverfassungsgerichts’

in Peter Badura and Horst Dreier (eds), Festschrift 50 Jahre Bundesverfassungsgericht, vol 1 (Mohr Siebeck 2001)
83–129.
 Introduction xli

Some of those who called most forcefully for meaningful East German self-determination
were current and former justices of the Constitutional Court. There was a certain irony in
such extra-judicial advocacy. The self-proclaimed guardians of a constitution never sub-
mitted for popular approval and thoroughly hostile to plebiscitary initiatives emerged as
paladins of direct democracy and popular self-determination. But the justices appreciated
keenly the vulnerable democratic legitimacy of the constitution they enforced. Perhaps
some hoped the Court’s own legitimacy would be bolstered by a ringing popular affir-
mation of a united German constitution, new or old.48 In any case, in the years following
reunification, the justices emerged as something of a mediation tribunal for East–West con-
flicts. This is not to say that East German petitioners uniformly prevailed in their appeals to
Karlsruhe. But the Federal Republic’s newest citizens won significant (if sometimes partial)
victories before the Court that they could never have achieved through ordinary politics. In
an atmosphere in which many Easterners feared, with some justification, that their inter-
ests would be trampled by superior Western political heft, the Court played an important
mediating role.
Within the ‘old’ states of the Federal Republic, however, the Court’s post-unification
jurisprudence was exquisitely divisive. A trio of searingly controversial decisions deliv-
ered in the mid-1990s plunged the Court into an unparalleled institutional crisis. The three
decisions overturned the conviction of sit-in protesters for criminal coercion; remanded
libel convictions for use of the phrase ‘soldiers are murderers’; and nixed a Bavarian statute
requiring that a crucifix be affixed to the wall of every public schoolroom. The judgments
unleashed a firestorm of criticism unlike any the Court had seen. Longtime Court-watchers
descried a transition from a traditional criticism of individual judgments (Urteilsschelte) to
a categorical attack on the Court as an institution (Institutionenschelte).49 Prominent politi-
cians led protest marches and breathed defiance at the Crucifix judgment. For the first time
in its history, the Court faced the prospect that its decisions would be not only criticized but
ignored. The Court’s approval ratings plummeted.50
In retrospect, the most telling memorials of the Court’s end-of-century crisis are not the
intemperate criticisms levelled at the Court but the full-throated defences—many from
non-lawyers—sounded on its behalf. As with earlier crises, the Court’s defenders adduced
its history. They cited the Court’s accomplishments in shielding fundamental rights,
advancing liberalism, and securing democracy. They praised the Court as a guardian of
individual rights, a bulwark of the Rechtsstaat, a constraint on self-interested politicians,
and a crucial catalyst of the end of Germany’s Sonderweg. Discontent with individual judg-
ments notwithstanding, they argued, Germans should take pride in their Constitutional
Court and feel gratitude for its achievements.

VI.╇ Coda: Constitutional Patriotism

In 1979, the political theorist Dolf Sternberger called on citizens of the Federal Republic to
rally round their state in the name of ‘constitutional patriotism’ (Verfassungs-patriotismus),
a phrase Sternberger himself coined.51 Seven years later, Jürgen Habermas adduced the

48╇ Perhaps a similar sensitivity was at work in the controversial rhetoric about democracy in the Court’s cau-

tious approval, in 1993, of the Maastricht Treaty creating the European Union. 89 BVerfGE 155 (1993).
49╇R ainer Wahl, ‘Quo Vadis—Bundesverfassungsgericht? Zur Lage von Verfassungsgerichtsbarkeit,

Verfassung und Staatsdenken’ in Bernd Guggenberger and Thomas Würtenberger (eds), Hüter der Verfassung
oder Lenker der Politik? Das Bundesverfassungsgericht im Widerstreit (Nomos 1998) 83–84.
50╇ See Vorlӓnder and Brodocz (n 39) 264.
51╇ Dolf Sternberger, ‘Verfassungspatriotismus’ FAZ (23 May 1979).
xlii Introduction

phrase on a more abstract level in his argument that, after Auschwitz, the only brand of
patriotism available to West Germans was a constitutional patriotism rooted in the uni-
versal values of Western liberalism.52 Anchoring the Federal Republic in an international
community united by such values was, Habermas contended, the proudest achievement of
his generation.
The concept of constitutional patriotism has been assailed as conceptually incoherent
and practically implausible.53 How many Germans, one might reasonably ask, have felt stir-
rings akin to those described (or prescribed) by Sternberger or Habermas? On the other
hand, Germans have been grateful for the Federal Republic’s stability and success, and they
have ascribed some of that success story to the constitution under which it has unfolded.54
Moreover, Court and constitution are inseparable in many citizens’ minds. As a journalist
in the Süddeutsche Zeitung wrote during the mid-1990s crisis, vituperative attacks on the
Court affected ‘necessarily the Basic Law as well’. For, ‘as nearly fifty years have shown, both
vital forces depend on one another. The battle for Karlsruhe, therefore, is also a battle for
the constitution’.55 When that crisis passed, the longue-durée view of the Court prevailed.
By century’s end, the Court featured prominently in celebratory accounts (composed for
the country’s fiftieth birthday in 1999) of the Federal Republic’s ‘success story’. Similar
panegyrics sounded when the Court honoured its own golden anniversary two years later.
By the dawn of the twenty-first century, the Federal Republic’s capital had moved from
Bonn to Berlin. But Germany remained—and, despite new challenges, it still remains—the
Karlsruhe Republic.56

52  Jürgen Habermas, ‘Eine Art Schadensabwicklung’ Die Zeit (11 July 1986) 40.
53  For an excellent critical essay on the concept, see Jan-Werner Müller, Constitutional Patriotism (Princeton
University Press 2007).
54 See Dieter Grimm, ‘Identitӓt und Wandel’ (2009) 37 Leviathan 603, 614; Dieter Grimm,

‘Verfassungspatriotismus nach der Wiedervereinigung’ in Hauke Bunkhorst and Peter Niesen (eds), Das Recht
der Republik (Suhrkamp Verlag 1998) 307; Stolleis, Geschichte des ӧffentlichen Rechts (n 33) 378; Schӧnberger
(n 21) 44–47.
55  Helmut Kerscher, ‘Die Kesselschlacht um Karlsruhe’ Süddeutsche Zeitung (2 March 1996) 4.
56  See Schaal, Friedel, and Endler (n 34); Gerhard Casper, ‘The “Karlsruhe Republic”—Keynote Address at

the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court’ (2001) 2 German
Law Journal, http://www.germanlawjournal.com/index.php?pageID=11&artID=111 last accessed 26 May 2015.
 1
Consolidation, 1951–1959
We have known since Marbury v. Madison what a dynamic constitutional court can
mean, and the nine men under Earl Warren have proved it anew. There is little sense,
therefore, in discussing the matter. You have the authority and the normative strength
of the factual on your side. This is more than enough.
—Hugo Marx to Gerhard Leibholz1

Constitutional questions are not originally questions of law, but questions of power.
—Ferdinand Lassalle2

Introduction
The Federal Constitutional Court opened in a solemn ceremony in Karlsruhe, held on 28
September 1951. In his inaugural remarks, Chancellor Konrad Adenauer suggested, in
a towering understatement, that the new tribunal had its work cut out for it. The Court,
Adenauer noted, was to defend and enforce the constitution of a republic that had been
framed—to put the matter mildly—under inauspicious circumstances. It was to do so with-
out the guidance of tradition and within a legal system sorely burdened by its recent past.3
Even so, the chancellor called on the Court to stand as a pillar of the Federal Republic and
supreme guardian of its fundamental law.4 The Court’s responsibility was solemn; its chal-
lenges were enormous. Adenauer had barely begun to enumerate them.
The Court was to enforce a democratic constitution in a country where popular demo-
cratic conviction ran thin. The political culture of the Federal Republic was pre-democratic,
if not downright anti-democratic. This presented the Court with both a challenge and an
opportunity. The challenge was to implement liberal and democratic values in a political
and legal culture that was skeptical of liberalism and democracy. The opportunity was to
establish constitutional judicial review without having to defend its democratic legitimacy.
In the German legal tradition, the principles of Demokratie and Rechtsstaat—of democracy
and the rule of law—had parted paths after the failed revolution of 1848. More recently,
the Nazis had obliterated both principles. The Court’s commission was to restore them; its
supreme achievement was to reunite them. But the rule of law came first. As the Court, in its
earliest years, worked to restore the rule of law, citizens began to view the Court as a neces-
sary precondition—and not as an institutional threat—to democracy.
In the process the Court helped the society and political culture of the Federal Republic
to become both more liberal and more democratic. The Court did this by developing and
deploying doctrinal precepts and interpretive methodologies that required all West German
law—and, later, all West German politics—to respect fundamental rights. The Court char-
acterized such rights as objective values, and pronounced that those values must condition

1  Hugo Marx to Gerhard Leibholz (undated) Bundesarchiv Koblenz (hereinafter BAK) N 306/4 (Nachlass

Hugo Marx).
2  Ferdinand Lassalle, Über Verfassungswesen (Meyer and Zeller 1863) 59.
3  In ‘Eröffnung des Bundesverfassungsgerichts’ (1951) 4 Neue Juristische Wochenschrift 791 (hereinafter NJW).
4 ibid.
2 Consolidation, 1951–1959

and constrain all positive law and all state power. The Court’s jurisprudence transformed
the Basic Law into a totalizing constitution. The Court itself became that constitution’s
ubiquitous and watchful guardian.
This jurisprudence brought the Court into conflict with its surrounding political and
societal milieu. Both politics and society were undergoing the birth pangs of democracy.
The process was slow and painful, its progress often difficult to detect.
Many citizens of the early Federal Republic were indifferent toward their new state; oth-
ers were actively hostile. A survey conducted around the time of the Court’s founding asked
West Germans when things had gone best for their country. Forty-five per cent pointed to
the pre-1914 Wilhelmine Empire; 40 per cent to the peacetime years of National Socialism.
Only 7 per cent chose the Weimar Republic; only 2 per cent the present.5 Many citizens of
the infant Republic rejected it out of hand as the sham imposition of an occupying power.
(A small minority decried its continuities with the Third Reich.) Many still viewed mem-
bers of the wartime resistance as traitors.6
Six years after the collapse of the Nazi regime, its sympathizers and self-styled successors
were on the political march. In the 1951 state elections, far-Right parties uniformly won
between 7 and 11 per cent of the vote. The strongest of these parties was the Socialist Reich
Party (SRP), which at its peak boasted 40,000 members. Its ranks were alarmingly young; its
message alarmingly attractive to former officers and soldiers—disillusioned drifters with
no professional prospects in a land without a military. The party evoked memories of the
Weimar-era Stahlhelm (steel helmet) organizations. Many feared it would expand exponen-
tially, and that its implacable hatred of the new Republic would appeal to refugees expelled
from areas east of the Oder-Neiβe boundary.7 Before Parliament even began to staff the
Constitutional Court, the Adenauer government considered asking the Court to ban the
ascendant party.
The SRP was toxic to the political mainstream, but so were efforts to make Germans
reckon with their recent past. Four months before the Court’s opening ceremonies, the
Bundestag formally proclaimed the end of denazification, an object of popular loathing
whose demise all major political parties advanced and applauded.8 A parliamentary statute
of 11 May 1951 smoothed the path for the near-universal rehabilitation and reintegration
of Nazi-era civil servants. The law fulfilled the mandate of Article 131 GG, which required
Parliament to clarify the legal standing of civil servants who lost their posts after the uncon-
ditional surrender of May 1945 but had not yet returned to public employment.
Quickly christened the ‘131 Law’, it provided financial compensation, and allowed
reentry, to those it affected—the ‘131-ers’. Some 430,000 former officials claimed the law’s
benefits.9 By 1953—when the Constitutional Court sustained the law’s constitutionality
in the most provocative manner imaginable—some 30 per cent of federal administra-
tive offices were filled by 131-ers. In the foreign and interior ministries, the rate was even
higher.10 The 131-ers were a variegated group, including former officials from the state of
Prussia, the m­ ilitary, and the East. More than a fourth of the 200,000 or so ‘civil 131-ers’,
however, had lost their jobs after denazification trials.11 After the 131 Law was passed,

5  Elisabeth Noelle and Erich Peter (eds), Jahrbuch der Öffentlichen Meinung 1947–1955 (Allensbach Verlag für

Demoskopie 1956) 126.
6 ibid 138.
7  Eckart Conze, Die Suche nach Sicherheit. eine Geschichte der Bundesrepublik Deutschland von 1949 bis in die

Gegenwart (Siedler 2009) 148.

8  See Norbert Frei, Vergangenheitspolitik. Die Anfänge der Bundesrepublik und die NS-Vergangenheit (CH

Beck 1996) 54–68.
9 ibid 70. 10 ibid 85. 11  See Conze (n 7) 155–56.
 Introduction 3

persons  once  dismissed for their Nazi ties flooded the Federal Republic’s civil service.
Former Nazis even filled cabinet posts. Restoration and rehabilitation reached other areas
of national life as well. In theatres throughout West Germany, filmgoers flocked to see the
first postwar film of Nazism’s star director, Veit Harlan—later the plaintiff–appellee in the
Court’s most famous case.12
Prominent among the rehabilitated 131-ers were judges and law professors. Some of these
became leading skeptics of constitutional judicial review. Even before the Court’s founding,
the Association of Public Law Professors expressed its anxiety—and latent hostility—in the
very theme of its 1950 meeting: ‘The Limits of Constitutional Justice’, the conference was
called.13 Almost to a man—and they were all men—public law professors agreed that the
Court’s authority should not involve political questions.
Fears that the Court would spawn an unholy mingling of law and politics found popular
resonance as well. The Court was a week old when the Catholic-conservative Rheinischer
Merkur wondered whether constitutional justice would produce ‘Jurisprudence or Politics’,
whether the Court was capable of forging a ‘legal tradition’, and whether its judges were
jurist enough for their jobs. The Merkur grumbled that the justices were merely robed politi-
cians dabbling in a kind of juristic dilettantism—politicians who might amass frightening
power in an insalubrious ‘jurists’ monopoly’.14
Worries that political power might concentrate in Karlsruhe were compounded by
signs of political instability in Bonn. The Federal Republic’s first nation-wide elections
in August 1949 had given a narrow Bundestag majority to a coalition headed by the
Christian Democratic Union (CDU)—with its Bavarian sister, the Christian Socialist
Union (CSU)—flanked by the liberal Free Democratic Party (FDP) and the nationalist
German Party (DP). The coalition placed Konrad Adenauer, the seventy-three-year-old
former mayor of Cologne and president of the Parliamentary Council, at the head of
the first federal government. Adenauer filled many cabinet positions with Christian
Democratic comrades, but also gave five posts to leaders from the CDU’s coalition part-
ners. Among these was Thomas Dehler, Bavarian chairman of the FDP, whom Adenauer
named minister of justice.
By autumn 1951, when the Constitutional Court opened its doors, the Adenauer govern-
ment was already embattled. Only a third or so of the citizenry approved of Adenauer’s
policies and performance. The Bundestag was a battleground of fiery debate between gov-
ernment and opposition. The most contentious arena of all was foreign policy. Adenauer,
whose craggy countenance seemed to embody the ancient landscape of his native Rhine val-
ley, was a visceral man of the West. In Adenauer’s cultural cartography the Rhineland was
Christian Europe’s heart, the Cologne Cathedral its crown. To the East lay the Asiatic steppes
(beginning roughly in Braunschweig) and the Siberian wilderness (coterminous with the
late kingdom of Prussia). Adenauer’s foreign policy was a relentless impulse westward. Its
watchwords were Westintegration (Western integration) and Westbindung (binding with
the West); its overarching goal was to bind the Federal Republic to its Western neighbours
within a coalition of liberal democracies. Adenauer envisioned a Western defence alli-
ance that included an armed West Germany. To this prospect the Social Democrats were

12  On Harlan, see Thomas Harlan, Veit (Rowohlt 2011).

13  Veröffentlichung der Vereinigung der Deutschen Staatsrechtslehrer, vol 9 (1952) (emphasis added). The con-
ference was held 20/21 October 1950. See also Thomas Henne, ‘“Von 0 auf Lüth in 6 ½ Jahren”: Zu den prägenden
Faktoren der Grundsatz entscheidung’ in Thomas Henne and Arne Riedlinger (eds), Das Lüth-Urteil aus (rechts-)
historischer Sicht: die Konflikte um Veit Harlan und die Grundrechtsjudikatur des Bundesverfassungsgerichts
(Berliner Wissenschafts-Verlag 2005) 200.
14  ‘Rechtsprechung oder Politik’, Rheinischer Merkur (14 September 1951) 2 (emphasis added).
4 Consolidation, 1951–1959

passionately opposed. The conflict ultimately came before the Constitutional Court, where
it occasioned the Court’s first and greatest crisis.
The brightest spot on the national landscape was the economy. Three years after the
postwar currency reform, the Deutschmark (DM) was gaining strength; a year after the
outbreak of the Korean War, a war boom was beginning to be felt. Marshall-Plan aid sup-
plied an additional fillip. In retrospect, the decade’s first years marked the beginning of an
unprecedented period of economic growth—an ‘economic miracle’ (Wirtschaftswunder),
as even contemporaries dubbed it. West German GDP rocketed from 97 billion DM in 1950
to 216 billion DM in 1957. Average growth between 1950 and 1955 exceeded 9 per cent; in
1955, it topped 12 per cent. As of September 1951, however, most of this was hidden from
view. Growth in 1950 was halting. Ludwig Erhard, the economic minister, would later be
lionized as the ‘Prophet of the Free Market’ and ‘Hero of the Economic Miracle’. But in early
1951, he was one of the least popular politicians in the country. The SPD opposition clam-
oured to end the market economy. Nightmarish memories of Weimar resurfaced. When
the Court opened its doors, the economic miracle had begun, but no one knew it. The future
seemed anything but certain.
In the face of such uncertainty, West Germans grew nostalgic for old absolutes and
longed for continuity with quieter times. One source of continuity was religion; both of
Germany’s major denominations enjoyed something of a postwar boom. Another was the
family. The ideal of a breadwinning father, a homemaking mother, and cherubic children
living in unity and security under a single roof experienced a popular renaissance, though
in the real world such arrangements were rare. Millions of men had been killed in the War
and thousands more remained Soviet prisoners. The War brought many women, mothers
among them, into the workplace. After the War, social pressures pushed many of these
women to leave their jobs and make room for returning soldiers. The Basic Law trumpeted
that men and women were equal before the law,15 but many politicians, preachers, and pub-
lic law scholars insisted that this precept was limited by the imperatives of the traditional
family.16 The constitution gave Parliament a grace period in which to update laws that flatly
offended the principle of gender equality, but Parliament had not yet done so. This matter,
too, would wend its way to Karlsruhe.
So would many of the major societal and political issues of the early Federal Republic.
Some of these controversies placed the Court at the centre of the public’s attention. On
the whole, the Court’s handling of them secured the public’s regard. In the most dramatic
cases, the Court often deferred to government policy. Never in the 1950s did the Court
directly invalidate an initiative of the Adenauer government. Indeed, the Court issued its
most aggressive early judgments—banning the Socialist Reich Party in 1952, the German
Communist Party in 1956, and local referenda on atomic armaments in 1958—at the fed-
eral government’s instigation.
But never, on the other hand, did the Court surrender an ounce of independence or
an inch of jurisdiction. The early Court mingled pragmatic caution with steely defiance,
procedural self-assertion with substantive restraint. The Court was flexible in matters
of government policy but adamantine on questions of institutional authority. The Court
assumed enormous, but always latent, political power and conspicuously eschewed
its partisan exercise. The Court made haste slowly, yielding frequently to government

15 
Article 3(2) GG.
the account in Christine Franzius, Bonner Grundgesetz und Familienrecht. Die Diskussion um die
16  See

Gleichberechtigung von Mann und Frau in der westdeutschen Zivilrechtslehre der Nachkriegszeit 1945–1957
(Vittorio Klostermann 2005).
 Institutional Independence 5

demands while reserving the right, in future cases, not to yield. When the Court did
assert authority it generally did so to the detriment only of unsympathetic (or in any
case politically powerless) litigants. And it did so largely outside the public gaze. This
was especially true of the Court’s early fundamental rights landmarks—in hindsight the
most momentous matters the Court has ever decided. Many groused that the Court was
meddling in politics, but few complained that it was undermining democracy. Instead,
by establishing itself as a safeguard of the rule of law, the Court emerged as a herald of
democracy—the guarantor of the one and the precursor of the other. At the same time,
the Court consolidated power, the future exercise of which would redefine both politics
and democracy.

I.╇ Institutional Independence

A.╇Choosing justices
‘Wir haben ein Verfassungsgericht’, intoned the 11 September 1951 issue of the Frankfurter
Allgemeine Zeitung—‘We have a constitutional court’.17 Days earlier, the Federal
Constitutional Court had issued its first major decision. The decision temporarily forbade a
proposed plebiscite on the creation of the Southwest German state of Baden-Württemberg.
The referendum could not go forward, the justices held, until after the Second Senate had
time to rule on the merger’s constitutionality. The Senate approved the union, to the dismay
of the Baden patriots who opposed it, six weeks later.18 The controversy over the Southwest
state placed the Court at the centre of public attention for the first time. More attention, and
greater controversy, followed in swift succession.
Nearly two and a half years passed between the promulgation of the Basic Law and
the creation of the Constitutional Court. The framers left many details concerning the
Court’s organization to future parliaments, and a divided Bundestag took eighteen months
to craft the Court’s statutory charter, the Federal Constitutional Court Act (FCCA), of
12 March 1951.19 This law called for half of the justices on each Senate to be appointed by the
Bundestag, half by the Bundesrat.
It took Parliament nearly six months to staff the Court.20 Nominally, each party in
Parliament would propose a number of candidates commensurate with the party’s par-
liamentary strength. In fact, sub-committee members from the coalition parties nomi-
nated together. As a result, candidates were classed as government nominees or opposition
nominees. These designations had portentous consequences for early perceptions of the
Court in the political and public sphere. The Adenauer government also played a significant
role in the nominating process through the ministry of justice, led by Thomas Dehler, the
justice minister, and his confidante, Willi Geiger. Dehler thought the government should
work to make the Court non-partisan. Instead of nominating only candidates politically

17╇ Hans Baumgarten, ‘Wir haben ein Verfassungsgericht’ Frankurter Allgemeine Zeitung (hereinafter FAZ)

(11 September 1951).
18╇ 1 BVerfGE 1 (1951); 1 BVerfGE 14 (1951).
19╇ Das Bundesverfassungsgerichtsgesetz (‘BVerfGG’ in subsequent footnote citations). For contempo-

rary comments on the Act, see Eduard Dreher, ‘Glanz und Elend der Staatsgerichtsbarkeit. Zum Gesetz
über das Bundesverfassungsgericht vom 12. Mӓrz 1951’ (1951) 4 NJW 377; Willi Geiger, Gesetz über das
Bundesverfassungsgericht vom 12. Mӓrz 1951. Kommentar (Vahlen 1952). For the standard scholarly study, see
Reinhard Schiffers, Grundlegung der Verfassungsgerichtsbarkeit—Das Gesetz über das Bundesverfassungsgericht
vom 12. Mӓrz 1951 (Droste 1984).
20╇S ee Richard Ley, ‘Die Erstbesetzung des Bundesverfassungsgerichts’ (1982) 13 Zeitschrift für

Parlamentsfragen 521.
6 Consolidation, 1951–1959

close to the government, the coalition parties should seek judges ‘enjoying a general public
regard’.21 Dehler would later think this effort had backfired.
The Court’s original twenty-four justices—twelve in each Senate—varied widely in out-
look and experience. As a group, they were most striking for their lack of judicial experi-
ence and their anti-Nazi credentials. This outcome was no accident. Conservative members
of Parliament, apprehensive about the Court’s potential interference in political affairs,
wanted to populate the Court with justices whose broad experience in public affairs would
attune them to the political implications of sensitive cases. Social Democrats, on the other
hand, mistrusted the traditional judiciary, whose hostility to the Left during the Weimar
era was surpassed only by its fealty to the Führer during the Third Reich.22 Only six of the
twenty-four founding justices came to Karlsruhe directly from another judicial post. Only
half of the justices had ever worked as judges in any capacity—and some of these only briefly
and decades earlier.23 As one student of the selection process concluded, most of the early
justices lacked a ‘typically judicial outlook [Lebensgefühl]’ and were ‘foreign to the tradi-
tions of this caste’.24
Distance from the traditional judiciary meant distance from the Nazi-era judiciary.
Unlike other official circles, the original Court, by and large, was free from the stain of
Nazi collaboration. More than two-thirds of the new justices had suffered personally
under Nazi misrule—eight were forced out of office; five had career paths slowed; four
resigned voluntarily.25 Four justices left Germany and spent the Nazi era in exile.
Some of the justices had suffered very personally indeed. Gerhard Leibholz, the moral and
intellectual leader of the early Court, was a leading Weimar-era jurist. Leibholz lost his pro-
fessorship in Göttingen because of his Jewish ancestry in 1935. In 1938, he emigrated—first
to Great Britain, where he was briefly interred as an ‘enemy alien’, later to the United States.
Leibholz was accompanied in exile by his wife, Sabine Bonhoeffer, twin sister of Dietrich
Bonhoeffer, the martyred resistance hero. Leibholz returned to Göttingen after the War, but
to a chair, not in law, but in political science—a discipline dismissed by German traditional-
ists as a dubious American import.26
Rudolf Katz, the Court’s first vice president, was also Jewish. Shortly after the Nazi sei-
zure of power, Katz fled to the United States, where he taught at the Institute of Public
Administration at Columbia and edited the Neue Volkszeitung, the sole SPD press organ
in exile. Erna Scheffler, the only woman on the original Court, lost her judgeship after the
Nazis passed the Nuremberg racial laws. Later she was disbarred as well. In 1934, the Nazis
dissolved her marriage to Georg Scheffler: Hitler’s millenarian Reich refused to recognize
the marriage of an Aryan to a ‘half-Jewess’. Scheffler spent the War working as a bookkeeper

21 
Thomas Dehler to Walter Strauβ (26 May 1951) BAK B 136/4436.
Ingo Müller, Furchtbare Juristen:  die unbewältigte Vergangenheit unserer Justiz (Knaur 1987). See
22  See

also Der Unrechts-Staat: Recht und Justiz im Nationalsozialismus (edited by Kritische Justiz) (Nomos 1983);
Lothar Gruchmann, Justiz im Dritten Reich 1930–1944:  Anpassung und Unterwerfung in der Ära Gürtner
(Oldenbourg 1987).
23  Werner Billing, Das Problem der Richterwahl zum Bundesverfassungsgericht:  Ein Beitrag zum Thema

‘Politik und Verassungsgerichtsbarkeit’ (Duncker and Humblot Gmbh 1969) 181. The FCCA required that eight
justices be chosen from the ranks of the federal judiciary, Parliament met this requirement by proposing four
nominees for midnight appointment to the Federal Court of Justice. This gave them the required status as federal
judges, though they had never actually sat on the Federal Court of Justice.
24 ibid 186.
25  See Udo Wengst, Staatsaufbau und Regierungspraxis, 1948–1953: zur Geschichte der Verfassungsorgane der

Bundesrepublik (Droste 1984) 243.

26  On Leibholz, see Anna-Bettina Kaiser (ed), Der Parteienstaat. Zum Staatsverstӓndnis von Gerhard Leibholz

(Nomos 2013); Peter Unruh, ‘Erinnerung an Gerhard Leibholz (1901–1982)—Staatsrechtler zwischen den Zeiten’
(2001) 126 Archiv des ӧffentlichen Rechts 61; Manfred H. Wiegandt, Norm und Wirklichkeit: Gerhard Leibholz
(1901–1982)—Leben, Werk, und Richteramt (Nomos 1995).
 Institutional Independence 7

in the business of a female friend, who shared ration cards with her. Beginning in January
1945, she hid in a summer home outside Berlin. After the War, she and Georg Scheffler
‘re-married’.27 With their appointment to the Federal Constitutional Court, Leibholz, Katz,
and Scheffler became the highest ranking Jews in the West German state.
Justice Erwin Stein worked in various positions as a government lawyer and judge
in Hessen until 1933, when he was forced resign because his wife, Hedwig, was Jewish.
Stein spent the War working as a private lawyer in Offenbach-am-Main. Fearing depor-
tation to extermination camps in the East, Hedwig Stein committed suicide in 1943. 28
Martin Drath, an SPD stalwart since the mid-1920s and former student and assis-
tant of Hermann Heller, a leading Weimar-era jurist, spent the Nazi era working in a
humble position as a clerk and accountant. Wilhelm Ellinghaus lost his job as a senior
regional civil servant. Julius Federer left the justice ministry for reasons of conscience
after the Nazi seizure of power and joined the ministry of the Catholic Church. Ernst
Friesenhahn’s promising academic career was scuttled by his open opposition to the
regime. 29 Gerhard Heiland lost his position as deputy police chief because of his open
democratic convictions.
Many years after the Court’s founding, Justice Willi Geiger reflected that those involved
in selecting the first justices—Geiger himself among them—had been animated by a spirit
of redress or compensation (Wiedergutmachung) when they appointed members of groups
persecuted by the Nazis. For these individuals, Geiger noted, high office in other branches
of government was largely foreclosed.30 Geiger himself had openly supported the Nazi
regime.31
For the Court’s first president, or chief justice, Hermann Höpker-Aschoff, elevation
to the bench came as a bitter disappointment, rendered doubly bitter by the manner in
which it came about. The Adenauer government played an aggressive role in choosing the
chief justice—rather to the irritation of parliamentarians who thought the chancellor and
justice minister were overstepping. After a series of preferred candidates declined the job
because of illness or disinclination, the cabinet’s choice fell, in the summer of 1951, on
Höpker-Aschoff. The cabinet minutes give no explanation of the choice, but it seems likely
that Adenauer, who initially took little personal interest in the Court, wished to appease his
FDP coalition partners by naming one of their own as chief justice. FDP leaders, including
the justice minister, Thomas Dehler, had long been calling for greater representation at the
highest levels of government. Dehler and Höpker-Aschoff also happened to be personal
friends, then living in the same apartment complex in Bonn.

27  On Scheffler, see Christian Waldhoff, ‘Erna Scheffler—erste Richterin des Bundesverfassungsgerichts’

(2008) 56 Jahrbuch des ӧffentlichen Rechts der Gegenwart 261.

28  On Stein, see Andreas Hedwig and Gerhard Menk (eds), Erwin Stein (1903–1992). Politisches Wirken und

Ideale eines hessischen Nachkriegspolitikers (Hessisches Staatsarchiv 2004); Richard Ley, ‘Nachruf Erwin Stein’
(1992) 45 NJW 3217.
29  Friesenhahn, a student of Carl Schmitt, had joined the SA in 1933 and applied to join the NSDAP. In 1934,

however, he left the SA and increasingly distanced himself from Schmitt when his former teacher openly advo-
cated the regime.
30  See Wengst (n 25) 244 (citing a personal conversation with Geiger).
31  Geiger was an officer of the SA and a member of the NSDAP. His dissertation on the National Socialist

press law of 4 October 1933 warmly praised the law’s categorical ban on Jewish journalists: ‘With one blow,
this provision abolished the over-powerful, Volk-noxious, and culture-destroying influence of the Jewish race
in the sphere of the press’. Willi Geiger, Die Rechtsstellung des Schriftstellers nach dem Gesetz vom 4. Oktober
1933 (Kichler 1940) 40. During the Third Reich, Geiger secured at least five death sentences as a state prosecu-
tor before the Sondergericht in Bamberg. In 1943, he was conscripted into the Wehrmacht and led a company
on the Eastern Front. It is unclear how much was known of Geiger’s past at the time of his appointment to
the Constitutional Court. His 1947 denazification proceeding classed him as ‘nicht betroffen’ (not affected)—
effectively an acquittal.
8 Consolidation, 1951–1959

Höpker-Aschoff, a Berlin politician with angular features, penetrating eyes, and an aqui-
line nose (there is something fiercely aviary in the surviving pictures), was enormously dis-
inclined to take the job. He chafed at leaving an incipient academic career that was steadily
growing on him and he balked at the idea of leaving the capital for provincial Karlsruhe.
Worst of all, he cringed at the thought of abandoning all hope of a postwar political career.
At length, however, the Prussian in Höpker-Aschoff prevailed. After some internal agoniz-
ing and a brief delay, he reported to the justice ministry that, urged by a sense of duty, he was
willing to answer his country’s call.
But his country, by that point, was reluctant to call him. Rumours of Höpker-Aschoff’s
candidacy produced loud alarms from Catholics, who were appalled by his liberal-
ism, and from federalists, who were alarmed by his centralism. Adenauer now realized
that if he pushed through Höpker-Aschoff’s appointment, he might alienate two crucial,
often overlapping, bastions of his electoral strength: the Catholic Church and the CDU’s
Bavarian sister party, the Christian Socialist Union (CSU). Unwilling to risk so much for
the Constitutional Court, Adenauer asked Höpker-Aschoff to withdraw his candidacy.
In an awkward letter of explanation, Adenauer regretted that Höpker-Aschoff’s wartime
involvement with Haupttreuhandel Ost—the agency responsible for distributing property
confiscated in occupied Poland—would provoke discussions ‘that will be truly disagree-
able and would be injurious to your position’.32 Wartime activities that didn’t dissuade the
government from choosing Höpker-Aschoff in the first place now furnished the pretext for
dismissing him on unrelated political grounds. Höpker-Aschoff, deeply wounded, fired a
frosty reply:
I did not seek the office of president of the Federal Constitutional Court. I declared myself
willing after two cabinet ministers, commissioned by the federal government, informed
me that the government had unanimously determined to recommend me for this office,
and after both ministers adjured me to accept it. The decision was difficult for me, for
it was clear to me what I  must give up:  political activity, my beloved teaching at the
University of Bonn, and my posts on the board of directors of two significant German
firms. In making my decision, however, I assumed that no reservations would be raised
against my nomination and that general trust would be placed in me. Since this is obvi-
ously not the case, I  am constrained, to my sorrow, to inform you that I  am no longer
ready to accept this office. 33

By the beginning of September, however, the political landscape had altered. Efforts to
find a willing candidate who pleased both the government and the parliamentary selection
committee had repeatedly failed. A ruling on the constitutionality of the Southwest state
plebiscite had become urgent. Pressure mounted to find a chief justice and launch the new
Court. Moreover, and decisively for Höpker-Aschoff’s candidacy, Adenauer had sparked
a row with the FDP leadership by holding talks in Bürgenstock with national trade union
leaders on the question of workers’ participation in industrial governance.34 The chancellor
sought to soothe the strain by returning to Höpker-Aschoff who, still bristling at Adenauer’s
earlier volte-face, ultimately accepted. Wounded pride yielded to duty; the self submitted to
the state. But the insult was not forgotten.
Catholics and Federalists were appalled, as were many Unionists who thought the ruling
party should pick one of its own to the head the highest court. But carp as detractors might,

32  In Thomas Aders, Die Utopie vom Staat über den Parteien:  biographische Annäherungen an Hermann

Höpker-Aschoff (1883–1954) (Peter Lang 1994) 304.

33  ibid 304–05. 34  See Wengst (n 25) 239; Aders (n 32) 307.
 Institutional Independence 9

the government stood by its choice. On 7 September 1951, the Bundestag made Hermann
Höpker-Aschoff the first chief justice of the Federal Constitutional Court.

B.╇The ‘status question’

The Court was now staffed with its two dozen justices. On 9 September 1951, it opened its
doors. What role the Court would play in the postwar political order remained to be seen.
Because the Court was empowered to police the constitutionality of government action, the
SPD entertained high hopes that the Court would serve as an instrument of opposition.
The governing coalition feared the Court for the same reason. The opposition championed
the Court’s institutional and budgetary independence; the coalition called for strong ties
between the Court and the federal government. In the end, the opposition view won out.
The Court, as if in grateful payment, repeatedly affirmed the constitutional legitimacy—and
democratic necessity—of parliamentary opposition. This would prove to be one of the early
Court’s greatest contributions to the democratization of West German politics.
At its inception, the Constitutional Court lacked both a building and a budget of its own.
Like the other federal courts, it was placed under the supervisory authority of the ministry
of justice. The justice ministry controlled the Court’s internal administration, including
salary and staffing. SPD politicians hotly opposed this state of affairs; cabinet ministers
vigorously defended it. Beneath the tumult of this general clash was a personal duel between
two men: Adolf Arndt, the leading legal mind of the opposition, and Thomas Dehler, the
federal minister of justice.35
Fiery and stubborn, volatile and intractable, Dehler was a man of strong views sharply
expressed. He was a mason and a liberal, a polemist and a firebrand. He was also a man of
great courage and conviction. Dehler first met and befriended Hermann Höpker-Aschoff
and Theodor Heuss, the first president of the Federal Republic, during the Weimar era
when the three men were fellow partisans of the German Democratic Party. In 1925 Dehler
married Irma Frank, a Jew, to whom he remained fiercely loyal throughout the Nazi era.
Peers within the Nazi-dominated bar pressed Dehler to renounce his marriage and for-
sake his Jewish clients. He did neither. Dehler also refused to give the Hitler greeting and,
in his legal practice, he represented the regime’s opponents. In the mid-1930s, he joined
the Robinson-Strassman Group, one of the longest-surviving Nazi-era opposition groups.
In 1938, Dehler was briefly imprisoned by the Gestapo. Because of his Jewish ties, he
was deported in 1944 to a forced labour camp. After the War, Dehler worked briefly as a
�denazification prosecutor in Bavaria, but he soon concluded that denazification had gone
far enough. Perhaps he thought it had gone too far.
Dehler’s justice ministry was marked by a policy of amnesty and amnesia. ‘I have never
doubted’, Dehler wrote, ‘that it is not only desirable, but in the interest of the internal pacifi-
cation of our people it is indispensable, that a thick line be drawn over the past’.36 As justice
minister, Dehler knowingly hired several former Nazis.37 One of the brightest of them, and
one of Dehler’s closest counsellors, was Willi Geiger, the future justice.38 Dehler was also
accused of blinking at the recent past in the matter of judicial appointments. On 3 January
1951, an article in the Frankfurter Rundschau sharply criticized the justice ministry’s

35╇ On Arndt, see Dieter Gosewinkel, Adolf Arndt. Die Wiederbegründung des Rechtsstaats aus dem Geist der

Sozialdemokratie (1945–1961) (Verlag J.H.W. Dietz Nachf 1991); on Dehler, see Udo Wengst, Thomas Dehler,
1897–1967: Eine politische Biographie (Oldenbourg 1997).
36╇ In Wengst, Thomas Dehler (n 35) 158.
37╇ ibid 142–43; see also Frei, Vergangenheitspolitik (n 8) 31. 38╇Wengst, Thomas Dehler (n 35) 142.
10 Consolidation, 1951–1959

appointments to the ordinary courts of the federal judiciary. The article noted that of the
fifty or so federal judges appointed during Dehler’s tenure, nearly half had been members
of the Nazi party. The article also claimed that Dehler had privately pronounced himself
‘against, in principle, Jewish judges and such judges … as have even a suspected connection
to one of the opposition parties’. On 12 January 1951, the Rundschau printed Dehler’s pas-
sionate rebuttal. Seared into the justice minister’s memory were the names of the article’s
SPD signatories. Foremost among them was Adolf Arndt.
Seven years Dehler’s junior, Arndt came of age politically in the tempestuous Berlin of
the Weimar Republic. He became a judge in 1932 but resigned his post in 1933 so as, he
recalled, ‘not to cooperate with them [the National Socialists]’. In 1933, he wrote a letter to
Nazi authorities, petitioning for admission to the bar and describing his judicial career as
compatible with National Socialist ideals. The letter, preserved in the archives of the Federal
Ministry of Justice, later fell into the hands of Thomas Dehler. Arndt spent the Nazi era
working as an attorney in the Berlin office of Fritz Schönberg, representing business clients
and victims of political persecution. During the War, Arndt was classed by the authori-
ties as a ‘half Jew’. In 1943, he became a forced labourer in the military production plant
Organisation Todt (‘organization Death’). He was interned in the summer of 1944, escaped
incognito in January 1945, and fled with his family to Westphalia in February 1945.
In 1949, Arndt began a twenty-year parliamentary career. He quickly distinguished
himself as the SPD’s most gifted lawyer and one of its best debaters. Colleagues revered
his immense knowledge; opponents feared his withering tongue. Journalists quickly chris-
tened the endlessly quotable Arndt the ‘crown jurist’ of social democracy. Arndt abomi-
nated the title. It smacked of monarchy, he thought, and it echoed the nickname once given
to Carl Schmitt, quondam ‘crown jurist’ of the NSDAP.
As German patriots, Dehler and Arndt both dreamed of restoring the rule of law in the
aftermath of Nazi misrule. But they had very different visions of how to do so. Dehler’s
hopes centred on his own ministry. He envisioned the justice ministry emerging as a
full-fledged ‘law ministry’ (Rechtsministerium) commissioned to ‘safeguard the legality
and constitutionality of all acts of state authority and, so far as the competences of the fed-
eral government reach, ensure that its measures are in harmony with these principles’.39 In
Dehler’s view, the justice ministry would stand as ‘Guardian of the Constitution’ (Hüter der
Verfassung).40
Arndt ascribed the same role and title to the Federal Constitutional Court. Within his
own party, on the floor of Parliament, and in the press, Arndt was an indefatigable cham-
pion of the Karlsruhe tribunal.41 He was a militant advocate of the Court’s independence.
Less than three weeks after the Court opened its doors, Arndt stood on the floor of the
Bundestag and called for the Court’s budgetary and administrative independence from the
justice ministry.42
This Dehler was most unwilling to concede. The justice minister viewed the new Court
with more anxiety than anticipation. Dehler never doubted the Court would play an impor-
tant political role. This would have its healthy side, he acknowledged. In January 1951
Dehler characterized the Court as an ‘outlet’ for ‘political tensions’, a rule-of-law forum
where ‘controversies can be worked out’.43 But Dehler was also disconcerted by the Court’s
‘extraordinary plethora of power’.44 Just before the FCCA was passed, Dehler confided to

39 ibid 143. 40 ibid. 41  See Gosewinkel (n 35) 471.

42  Verhandlungen des Deutschen Bundestages. Stenographische Berichte, 165. Sitzung (27 September 1951)
6753.
43  In Wengst, Thomas Dehler (n 35) 151. 44 ibid.
 Institutional Independence 11

Robert Lehr, the interior minister, that he thought the Basic Law had granted the Court
‘vastly excessive’ powers, overburdening it ‘with decisions … hardly reconcilable with its
character as a court’. Scrupulous care must be taken, Dehler cautioned, to keep the Court
from making ‘political decisions’. Otherwise, the public might see the justices ‘less as the
[country’s] highest court, than as a political organ’.45 Dehler cast this caution in the passive
voice. But it was very clear by whom such ‘scrupulous care’ must be taken. Dehler’s own
ministry of justice would keep the Court at bay.
In the months that followed, Dehler’s anxiety increased. He rarely saw eye to eye with
the parliamentary committees charged with choosing the justices and was largely unhappy
with their choices.46 It was some consolation to have his friend Hermann Höpker-Aschoff
presiding over the First Senate and his confidante Willi Geiger sitting on the Second.
Such correspondents in key places, Dehler hoped, would facilitate his supervision of the
Court’s work.
Dehler soon moved to justify and secure this supervisory role. Already needled by
Arndt’s call for the Court’s separation from the justice ministry, Dehler was further pro-
voked in October 1951, when Justice Kurt Zweigert, without consulting the justice minister,
submitted his resignation from the Court directly to the federal president, Theodor Heuss,
and the president of the Bundestag, Hermann Ehlers (CDU). Zweigert, Dehler fumed,
had gone over the justice minister’s head. Dehler asked justice ministry lawyers to pre-
pare two memos, one addressing the ‘Relationship Between the Federal Minister of Justice
and the Federal Constitutional Court’, and another addressing the ‘Budget of the Federal
Constitutional Court’.47 Both memos proclaimed the Court’s administrative and budget-
ary subordination to the justice ministry.
This unilateral assertion of authority roused the justices to a united response. At the
behest of his peers, Justice Gerhard Leibholz prepared a circular that the Court later
expanded into an official memo, which they submitted on 27 June 1952 to the federal presi-
dent, the chairs of both chambers of Parliament, and the federal government.48 Soon styled
the ‘Status Memo’ (Status-Denkschrift), the document breathed defiance to Dehler’s claim
of supervisory prerogative. It was the nine-month-old Court’s declaration of institutional
independence.
The memo’s message was straightforward: the Court’s current institutional position was
untenable. More pointedly, it was unconstitutional. The legal basis of the Court’s argument
was the first sentence of its founding charter: ‘The Federal Constitutional Court is, vis-à-
vis all other constitutional organs, a self-sufficient and independent court of justice’.49 The
FCCA’s reference to all other constitutional organs’ clearly indicated that the Court itself
was a constitutional organ, coequal and coordinate with the ‘other constitutional organs’
from which the FCCA proclaimed the Court independent. As Leibholz wrote in his report,
the Court ‘must be addressed, not only as the head of judicial authority and in this capacity
as guardian and guarantor of the constitution, but also as a constitutional organ, endowed
with supreme authority, which politically as well as for purposes of constitutional law must

45 ibid 152. 46  ibid 154–55.

47 
See ‘Justizverwaltungsverhältnis zwischen Bundesjustizminister und Bundesverfassungsgericht; Haushalt
des Bundesverfassungsgerichts’ in Rechtsstellung des Bundesverfassungsgerichts, BAK, B 141/83. See also Frank
Spieker, Hermann Höpker-Aschoff: Vater der Finanzverfassung (Duncker and Humblot 2004) 209.
48  Both Leibholz’s report and the Court’s memo were later published. See ‘Bericht des Berichterstatters an

das Plenum des Bundesverfassungsgerichts zur ‘Status-Frage’ (1957) 6 Jahrbuch des öffentlichen Rechts 120;
‘Denkschrift des Bundesverfassungsgerichts—Die Stellung des Bundesverfassungsgerichts’ (1957) 6 Jahrbuch
des öffentlichen Rechts 144.
49  BVerfGG § 1 (1951).
12 Consolidation, 1951–1959

be placed beside the Bundestag, the Bundesrat, the federal government, and the federal
president’.50
From this lofty status, Leibholz derived three concrete demands, which the Court should
present to its coordinate organs: first, remove the Court from the jurisdiction of the justice
ministry and place its administration under the sole authority of the chief justice; second,
give the Court its own budget, rather than a mere chapter within the budget of the justice
ministry; and third, establish for the justices an official rank comparable to that of a cabinet
minister or member of Parliament.
While the Court was still debating Leibholz’s report and its recommendations, Dehler
got wind of its content. The justice minister was apoplectic. He fired off a personal letter to
Adenauer, in which he roared that the justices had ‘fallen prey to an unparalleled hubris’.51
Other politicians, however, even within the chancellor’s own party, were sympathetic
to the Court’s demands. After the Court circulated its memo on 27 June 1952, Heinrich
von Brentano, a CDU parliamentarian, wrote to Adenauer urging that the govern-
ment take a comprehensive position on the question as soon as possible.52 In light of
the myriad cases pending before the Court—including a handful of petitions from SPD
parliamentarians—Brentano thought it politic to yield ‘at least to the justified requests’ set
forth in the Court’s memo. It would be rash, he warned, to make enemies in Karlsruhe.53
The government dug in. Dehler documented his own position but didn’t publish it.
Instead, he hoped to exploit divisions within the Court itself. Two of the justices disputed
their colleagues’ conclusions. One of them, Willi Geiger, took the extraordinary step of
publishing unofficially what amounted to a dissenting opinion.54 The other abstaining jus-
tice, more circumspect in his difference of opinion, was Hermann Höpker-Aschoff. Dehler
hoped to make Höpker-Aschoff’s resistance to the memo’s ‘demands’ a rallying point of
opposition. Dehler coaxed and cajoled his former comrade to oppose the memo publicly.
Höpker-Aschoff hummed and hawed, but finally consented to write a position paper of his
own—but only after his holiday. The chief justice’s paper didn’t appear until 13 October
1952.55
It was not the blistering refutation Dehler had hoped for. The chief justice merely dis-
tanced himself from the strongest statements in the Status Memo. Höpker-Aschoff argued
that the Court was indeed a constitutional organ, but not in the strong sense urged by his
colleagues. He saw in Section 1 of the FCCA no more than a guarantee of independence
and self-sufficiency similar to that enjoyed by the other federal courts. He embraced the
Memo’s conclusions only on matters of secondary importance. On the budgetary question
he remained undecided.
More forceful than Höpker-Aschoff’s personal statement was the other justices’ response
to it. On 29 October, Vice President Rudolf Katz, joined by nineteen other justices, 56 wrote
to Dehler directly. Katz rejected Höpker-Aschoff’s arguments and repeated the demands of
the original Memo.57 The constitution, Katz insisted, required ‘the Federal Constitutional
Court’s general independence, as a supreme federal organ, from every’ other governmental

50  ‘Bericht des Berichterstatters’ (n 48) 127. 51  In Wengst, Thomas Dehler (n 35) 317.
52 ibid 318. 53 ibid.
54 This move was all the more remarkable since the FCCA did not allow individual justices to pub-

lish dissents in the Court’s formal judgments. See Willi Geiger, ‘Ergänzende Bemerkungen zur Stellung des
Bundesverfassungsgerichts’ (1957) 6 Jahrbuch des öffentlichen Rechts 161.
55 See Hermann Höpker-Aschoff, ‘Schreiben des Präsidenten des Bundesverfassungsgerichts’ (1957) 6

Jahrbuch des öffentlichen Rechts 44.

56  At this point two seats on the Court were empty. Only Geiger didn’t sign Katz’s rebuttal.
57  See Rudolf Katz, ‘Schreiben des Vizepräsidenten des Bundesverfassungsgerichts an den Bundesminister

der Justiz’ (1957) 6 Jahrbuch des öffentlichen Rechts 156.

 Institutional Independence 13

institution.58 At this point Dehler again set out a position of his own, but again decided not
to publish it.59 Instead, after considerable delay, he commissioned Richard Thoma, a promi-
nent conservative law professor (whom the government viewed as a potential justice)60 to
answer the Court’s Memo.61 Thoma did so at moderate length and some level of abstraction,
completing his advisory opinion in late March 1953 and publishing it shortly thereafter.62
Thoma’s paper found a warm reception both with his patrons in the government and
within the conservative professoriate. Walter Jellinek wrote that he rejoiced over his col-
league’s memo, ‘in the first place, because [it] shows you in top form, but also because you
have really given it to the arrogant justices of the Constitutional Court’.63 Speaking for the
Court, Leibholz responded to Thoma’s paper; but Thoma let the matter rest there, explain-
ing that he valued his personal friendship with Leibholz too much to risk ‘a genuine jurists’
duel’.64
Meanwhile the Court received unexpected aid from Parliament. During its October 1952
budget debates, the Bundesrat proposed ‘a special individual plan for the Constitutional
Court within the federal budget’.65 The Bundesrat renewed this proposal two months later.66
In a letter to Adenauer, Rheinhold Maier (the Bundesrat’s president) explained the motion
in terms reminiscent of the Status Memo. Similar language now appeared over the signa-
ture of Hermann Höpker-Aschoff. Speaking for the Court on 16 January 1953, the chief jus-
tice stressed that ‘the Federal Constitutional Court is not directly subordinate to a federal
minister, but is rather a self-sufficient supreme federal organ’.67 Though Höpker-Aschoff’s
personal view of the matter was unchanged,68 in his official capacity he now joined his col-
leagues in a united call for institutional independence. Events of the previous month, not
directly related to the status question but with Thomas Dehler at the centre of them, helped
prompt the chief’s apparent change of heart.
In March 1953, Social Democrats in the Bundestag, led by Adolf Arndt, proposed to grant
the Court an independent budget.69 The Bundestag promptly referred the proposal to its
budget committee. While the committee deliberated, Dehler wrote a memo to his cabinet

58 ibid.
59  See ‘Stellungnahme des Bundesministeriums der Justiz’ (December 1952) BAK N 1194/8 (Nachlass Richard

Thoma).
60  See ‘Vorschlagsliste der Bundesregierung’ BAK B 136/4436.
61  Mosler to Richard Thoma (29 December 1952) BAK N 1194/10 (Nachlass Richard Thoma) (asking for an

advisory opinion in Dehler’s behalf). See also Thomas Dehler to Richard Thoma (12 January 1953) BAK N 1194/10
(Nachlass Richard Thoma) (offering 2,000 DM for the solicited memo); Richard Thoma to Thomas Dehler
(14 January 1953) BAK N 1194/10 (Nachlass Richard Thoma) (accepting the job on Dehler’s terms). On Thoma,
see Hans-Diether Rath, Positivismus und Demokratie: Richard Thoma 1874–1957 (Duncker and Humbolt 1981).
62  See Richard Thoma, ‘Rechtsgutachten betreffend die Stellung des Bundesverfassungsgerichts: Auf Ersuchen

des Herrn Bundesministers der Justiz’ (1957) 6 Jahrbuch des öffentlichen Rechts 161.
63  Walter Jellinek to Richard Thoma (29 June 1953)  BA, N 1194/10 (Nachlass Richard Thoma). Another

leading jurist, Ulrich Scheuner, wrote to Thoma, praising his memo and criticizing what he termed the
‘Begriffsjurisprudenz’, or conceptual jurisprudence, of the Court’s own position. Ulrich Scheuner to Richard
Thoma (21 June 1953) BAK N 1194/10 (Nachlass Richard Thoma).
64  See Richard Thoma to Gerhard Leibholz (22 June 1953) BAK N 1194/10 (Nachlass Richard Thoma). Leibholz

accepted the truce. See Gerhard Leibholz to Richard Thoma (25 June 1953) BAK N 1194/10 (Nachlass Richard
Thoma). By this point, Thoma had also been alienated by Dehler’s intemperate public railing against the Court.
See Richard Thoma to Justice Ernst Friesenhahn (23 June 1953) BAK N 1194/10 (Nachlass Richard Thoma).
65  Stenographischer Bericht über die 94. Sitzung des Bundesrates (24 October 1952) 495.
66  Stenographischer Bericht über die 94. Sitzung des Bundesrates (19 December 1952) 602.
67  See Hermann Höpker-Aschoff, ‘Einzelplan des Bundesverfassungsgerichts im Haushaltsplan’ (1957) 6

Jahrbuch des öffentlichen Rechts 159.

68  As late as 25 June 1953, Leibholz wrote to Richard Thoma that Höpker-Aschoff and Geiger remained

opposed to the position the Court had taken. Gerhard Leibholz to Richard Thoma (25 June 1953) BAK N 1194/10
(Nachlass Richard Thoma).
69  See BAK B 141/84 116.
14 Consolidation, 1951–1959

colleagues in which he embraced Thoma’s arguments and rejected the Court’s demands.70
The cabinet adopted Dehler’s position. The Court stood its ground. On 3 June, the Court
answered Thoma’s memo, summarizing the Status Memo and repeating its calls for reform.71
The impasse was finally broken on 14 July, when the Bundestag amended the Federal Civil
Servants Law to allow the chief justice to appoint civil servants on the same terms as the
presidents of the Bundesrat and the Bundestag. At the same time, the Bundestag Budget
Committee embraced the SPD proposal and granted the Court its own budget.
Unwilling to concede defeat, Dehler solicited memoranda from several prominent law
professors on the Court’s status.72 But the theoretical question was moot; memoranda could
not repeal statutes. Whatever the professors might say, the Court was now, de jure and de
facto, a sovereign constitutional organ, coordinate in rank with the other branches of the
federal government. Dehler continued to howl against the tide,73 but he soon lost his voice.
In autumn 1953, Adenauer declined to renew Dehler’s appointment as justice minister.
Höpker-Aschoff and others had threatened to resign if Dehler remained. Dehler learned
by sad experience the wisdom of Brentano’s warning. In a matter not directly related to the
‘Status’ dispute, the justice minister had roused enmity in Karlsruhe. It cost him his office,
and thereby hangs a tale.

II.╇ Judicial Politics

By refusing to renew Dehler’s appointment after the 1953 elections, Adenauer proved
less loyal to his justice minister than Dehler had been to him. Especially in the fractious
field of foreign policy, Dehler had toed the Adenauerian line. That line, as noted, pointed
aggressively westward. The chancellor wished to integrate the Federal Republic within an
alliance—including a military alliance—of Western European democracies and the United
States. Dehler made Adenauer’s vision of Western integration his own. ‘I will take this path
with you’, he promised the chancellor in January 1952.74

A.╇Crisis and solidarity: the European Defence Community Treaty

That path, as it happened, ran through Karlsruhe. Days after Dehler’s letter to Adenauer, 144
members of the Bundestag petitioned the Constitutional Court to enjoin the centrepiece of
Adenauer’s foreign policy—a treaty creating the European Defence Community (ECD)—as
unconstitutional. The petition was prophylactic. The treaty had not yet been signed. The
parliamentary complainants were represented by two among their number:  Bernhard
Reismann from the Centre Party, and Adolf Arndt of the SPD.
The challenged treaty grew out of the so-called Pleven Plan, a proposal put forth in 1950
by René Pleven, the French prime minister, as an alternative to West German accession to
NATO. The Plan sought to protect Western Europe against Soviet encroachments. The EDC

70╇ Thomas Dehler to the Staatssekretär des Bundeskanzleramtes (13 April 1953) BAK B 122/2168.
71╇ See Das Bundesverfassungsgericht, ‘Bemerkungen des Bundesverfassungsgerichts zu dem Rechtsgutachten
betr. Die Stellung des Bundesverfassungsgerichts von Geh. Hofrat Dr. Thomas vom 3. Juni 1953’ (1957) 6 Jahrbuch
des öffentlichen Rechts 194.
72╇See letters from Thomas Dehler to Professors Kaufmann, Thoma, Scheuner, and Mosler (12/13 June

1953) BAK B 141/85.
73╇ As late as 17 June 1953, Dehler wrote to Adenauer that he considered his criticisms of the Court over the pre-

vious months to be ‘justified and necessary’. Thomas Dehler to Konrad Adenauer (17 June 1953) BAK B 136/4436.
74╇ In Wengst, Thomas Dehler (n 35) 203.
 Judicial Politics 15

envisioned a merger of the national armies of its six member states—France, Italy, West
Germany, and the three Benelux nations—with command vested at the supranational level.
The SPD’s vehement opposition to the proposal was not the product of unbending paci-
fism. After the outbreak of the Korean War, the SPD had no objection to rearmament in
principle. The crucial question for the opposition was how the Federal Republic was to
rearm—under what circumstances and at whose behest. The SPD’s hostility to the proposed
treaty had a nationalist impulse. Full restoration of (West) German sovereignty, the party
maintained, must precede international defence alliances. Any such alliance, moreover,
must not postpone German reunification indefinitely. In the SPD’s eyes, the EDC Treaty
failed on both counts.
Policy objections nurtured constitutional scruples. The opposition argued that the
government lacked constitutional authority to sign the treaty and that the treaty violated
substantive constitutional provisions. The theory underlying these objections rejected the
existence of implied powers and insisted that enumerated powers be construed strictly.
Initially, the government viewed the constitutional challenge with more contempt than
concern. In February 1952, an insouciant Adenauer dismissed the petition as ‘utterly hope-
less and superfluous’.75 In months to come, however, the chancellor’s confidence began to
crumble.
Adolf had already made aggressive use of constitutional challenges to oppose the
­government’s foreign policy. He had challenged the constitutionality of the so-called
Petersburg Agreement (which partly restored West German sovereignty at the price of
international control of the Ruhr) and the German–French Economic Agreement (a trade
and reparations deal that focused on the Saarland). In separate judgments dated 29 July
1952, the Court rejected both petitions.76 The very next day, the First Senate rejected as
inadmissible the SPD’s prophylactic petition against the EDC Treaty.77 The challenge, the
Senate held, was premature. Only after the treaty had been ratified in Parliament could the
Court assess its constitutionality.
This was a disappointment to the opposition, but also a partial victory. The Court’s
holding implied that treaties become law, not when the executive signs them, but when
Parliament approves them. By the time the Court ruled on this procedural point, the trea-
ties had already been signed—in Paris on 26 May, in Bonn the day after. And yet the Court
held that the treaty was not yet law. The Court’s decision meant delay, not defeat. The SPD
could renew its challenge after the treaty was affirmed in Parliament.
However the opposition might console itself, the government was jubilant. ‘The federal
government’, crowed an official bulletin of 31 July, ‘finds particular satisfaction in the fact
that its point of view in the procedural question has now been vindicated by the Federal
Constitutional Court. It now awaits with confidence the Federal Constitutional Court’s
resolution, in response to the request of Federal President Heuss, of the contested substan-
tive issue’.78
The presidential petition mentioned in the bulletin had been submitted on 10 June. The
FCCA allowed the federal president to solicit from the Court an advisory opinion on the
constitutionality of a pending law. Presumably at Adenaur’s urging, Heuss had done so with
respect to the EDC Treaty. Heuss presented his request as a statesmanlike bow to the letter

75  Verhandlungen des Deutschen Bundestags. Stenographische Berichte, 190. Sitzung (7 February 1952) 8106.
76  1 BVerfGE 351 (1951) (Petersberg Agreement); 1 BVerfGE 372 (1951) (economic agreement).
77  1 BVerfGE 396 (1952).
78 See Bulletin des Presse- und Informationsamtes der Bundesregierung (31 July 1952).
16 Consolidation, 1951–1959

of the constitution; opposition politicians and journalists perceived it as a tactical manipu-

lation of the Constitutional Court.
In choosing the Court’s first members, coalition and opposition made contradictory cal-
culations about the relative importance of the Court’s two Senates. Adolf Arndt, the SPD’s
leading negotiator, was convinced that the First Senate, with jurisdiction over abstract
review of legislation and questions of fundamental rights, would be the more important
chamber politically. Willi Geiger, the government’s leading counsellor, was sure the Second
Senate, charged with mediating disputes between branches and levels of government and
with policing the boundaries of state power, would wield greater political weight. The oppo-
sition parties worked to place their favoured candidates on the First Senate; the coalition
parties to place theirs on the Second.79
Though few of the justices were openly affiliated with a political party, observers calcu-
lated that seven of the eleven justices on the First Senate favoured the opposition, while seven
of the eleven judges on the Second Senate supported the government.80 Wags saddled both
Senates with Stendhalian epithets—the First Senate, ostensibly opposition-friendly, was
branded the ‘Red’ Senate; the Second Senate, ostensibly government-friendly, the ‘Black’.
As an appeal for abstract review (Normenkontrol), the opposition’s challenge to the
EDC Treaty would go before the First (‘Red’) Senate. Government sympathizers accused
the opposition of gaming the Court’s procedures to place the petition before ‘their’ Senate.
Whether or not the accusation was justified, the government responded in kind. Under the
FCCA, a presidential request for an advisory opinion went before a plenum of both Senates.
Those in the know assumed that the plenum would consist of eleven ‘Black’ justices, ten
‘Red’ justices, and one neutral.81 Presumably an advisory opinion from the plenum would
bind each individual Senate in future judgments on the merits. What’s more, the Court gave
temporal precedence to requests for advisory opinions. The government hoped the plenum
would validate the treaty and preempt review by the hostile First Senate.
Though Dehler had toyed with the idea of requesting an advisory opinion as early as
February, he grew skeptical when, towards the end of May, Adenauer announced his inten-
tion to embrace it.82 Rumours of Dehler’s private seething about the Court—its ‘unpar-
alleled hybris’ and general unfitness83—had reached the justices, and Dehler may have
thought it wise to avoid further provocation.
But it was not in Dehler’s nature to avoid provocation for long. When Adenauer floated
the plan again on 6 June, Dehler raised no objection. With the cabinet agreed, the govern-
ment approached Heuss. The President demurred. Heuss, a grey eminence of the young
Republic and founder of the postwar FDP, took seriously his constitutional obligation of
strict neutrality, an obligation that made him reluctant to intervene in a partisan dispute.84
What’s more, Heuss was a liberal of the old school, hostile to law’s intrusion into politics
and skeptical, therefore, of judicial review.85 Heuss didn’t want matters of state decided
by judges. For this reason, he initially balked at Adenauer’s request. Perhaps for the same
reason, he ultimately acquiesced. Better, perhaps, to have all of the red robes in Karlsruhe

79  See Wengst (n 25) 241. 80 ibid 242.

81  Two seats, those of Kurt Zweigert and Carl Leusser, had been vacated, but Parliament, convulsed by the
controversy over the ECD, could not agree on replacements.
82  See Wengst (n 25) 206; Arnulf Baring, Auβenpolitik in Adenauers Kanzlerdemokratie (Oldenbourg 1969)

226. As early as February 1952, Adenauer’s advisors had raised the possibility of putting the case before the
Second Senate or the Plenum. See, e.g., Hans Globke to Konrad Adenauer (26 February 1952) BAK B 136/989.
83  See Wengst (n 25) 206.
84  On Heuss, see Thomas Hertfelder and Christiane Ketterle, Theodor Heuss: Publizist, Politiker, Präsident

(Stiftung Bundespräsident-Theodor-Heuss-Haus 2003).
85  See Baring (n 82) 224.
 Judicial Politics 17

sustain government policy than to have half of them scuttle it. In any case, on 10 June 1952,
Heuss asked the Court for an advisory opinion. He wished to know, he explained, whether
he could, in good conscience, approve the treaty. Dehler and his assistants helped write the
petition.86
The opposition was indignant. Adolf Arndt, who begged Heuss in vain not to submit
the request, now called on Heuss to resign.87 Arndt growled privately that he no longer
considered Heuss president. Some of the justices, however, greeted the request with relief.
Höpker-Aschoff beamed when he learned of it.88 Responsibility for the decision would now
be shared by the entire Court. Perhaps the plenum format would silence talk of a Red Senate
and a Black. The First Senate proposed that the abstract review petition be set temporarily
aside, so the plenum could focus on Heuss’s request for an advisory opinion. The govern-
ment consented eagerly;89 the opposition firmly declined.90 Faced with the split, the Court
decided first to address whether the opposition complaint was even admissible, and then
to consider Heuss’s request. His ruse apparently foiled, Adenauer groaned that ‘the entire
construction of the Federal Constitutional Court now proves itself a failure’.91
The failure seemed less calamitous six weeks later, when the First Senate declared the
prophylactic petition inadmissible. The ‘Red’ Senate had ruled against the SPD, thus chal-
lenging the predictive power of partisan calculations. Such unpredictability would prove a
two-edged sword to a government that, on the basis of partisan calculations, had placed the
substantive question of the ECD’s constitutionality before the Court’s plenum. Meanwhile
the stakes continued to rise. On 4 August, Heuss expanded his request, asking the Court
to rule on the constitutionality of the so-called ‘Germany Treaty’—a transitional treaty
­hastening the end of occupation—as well.92
The opposition urged the Court to reject the entirety of Heuss’s request as inadmissible in
its entirety.93 Arndt argued that, if the Court couldn’t assess the constitutionality of pend-
ing legislation in response to an abstract review petition, it couldn’t do so in response to a
request for an advisory opinion either.94 Unimpressed by the analogy, the Court ruled on 8
September that Heuss’s request was admissible. Justice ministry lawyers went further, argu-
ing that the plenum’s response to Heuss’s request would bind both Senates in subsequent
decisions on the merits.95 The opposition continued to insist that the request was inadmis-
sible, but agreed nonetheless to take part in the proceedings.
Those proceedings drew international attention. In the theatre of West German politics,
they assumed centre stage. The Court itself kept a low profile, conducting oral hearings and
deliberating internally under its traditional terms of confidentiality. The leading parties
to the case, by contrast, erupted in partisan polemics. In the middle of the fiery ring stood
Thomas Dehler and Adolf Arndt.
Enmity between the two men began when the Bundestag debated the Petersberg
Agreement in November 1949 and escalated over the following months as Arndt emptied

86 See Chef des Bundespräsidialamtes to Otto Lenz (7 June 1952) BAK B 136/990.

87 Wengst (n 25) 207. 88  See Baring (n 82) 227.
89  See Thomas Dehler to Hermann Höpker-Aschoff (17 June 1952) BAK B 136/990.
90  See Hans Globke to Konrad Adenauer (18 June 1952) BAK B 136/990. Globke indicates that Arndt and

Reismann had sent the Court a telegram earlier that day. See also Adolf Arndt and Bernhard Reismann to
Bundesverfassungsgericht, First Senate (19 June 1952) BAK B 136/990 (a further explanation for the previous
day’s refusal). The government knew the opposition would decline the proposal before sending its own accept-
ance. See Hans Globke to Konrad Adenauer (16 June 1952) BAK B 136/990.
91  In Wengst (n 25) 207. 92  Der Kampf um den Wehrbeitrag, vol 2 of 2 (Isaar 1958) 4.
93  See the exchange of letters between Arndt and Höpker-Aschoff in ibid 829–35.
94  See Adolf Arndt to Hermann Höpker-Aschoff (14 August 1952), in ibid 830–31.
95  See the statements of Walter Strauβ (of the federal justice ministry) and Erich Kaufmann (of the chancel-

lery) during the oral arguments on 18 July 1952 in Der Kampf um den Wehrbeitrag, vol 1 of 2 (n 92) 390, 427, 433.
18 Consolidation, 1951–1959

a quiver of venomous barbs in Dehler’s direction. In a 1950 newspaper article Arndt called
Dehler ‘the grave-digger of justice’. A month later he quipped in the Bundestag that ‘when
Herr Minister Dehler speaks, it is always a national misfortune’.96 Dehler sued, unsuccess-
fully, for libel. He longed for the day when Arndt’s parliamentary immunity would expire.97
As the simultaneous controversies over the EDC Treaty and the status of the Constitutional
Court unfolded in 1952, Dehler saw in Arndt the mastermind behind an insidious conspir-
acy to make the Court a repository of political power and a tool of socialist aims. Rumours
that the Court would rule against the treaties suggested to Dehler’s apprehensive mind that
Arndt was succeeding.
In November, Dehler engaged in a mutual exchange of abuse with Arndt’s SPD col-
league, Otto-Heinrich Greve. Arndt wrote afterwards to Wilhelm Laforet, chairman of
the Bundestag legal committee, that ‘already once in the plenum of the Bundestag, I have
unfortunately had to say that a federal minister of justice, who wishes to make political
lies punishable by law, must first behave accordingly himself’.98 The following day, at an
FDP convention in Bad-Ems, Dehler delivered a speech that, even by his standards, was a
monument of ill-consideration. ‘You know’, Dehler warned his hearers, ‘that the barriers
of the Constitutional Court apply to our treaties as well’. ‘I would hope’, he continued, ‘that
[in Karlsruhe] the spirit of socialism has no effect. I would hope that the highest German
court makes decisions not of political will, but of law’.99 Dehler’s meaning was unmistak-
able, his words both admonitory and accusing. He insinuated openly that the Court leaned
leftward, and that a ruling against the EDC Treaty would confirm that suspicion. Dehler’s
words were understood—by press and public, in Karlsruhe and in Bonn—as a thinly veiled
threat.100
The SPD responded on 25 November with a censure motion in the Bundestag. Dehler’s
speech, they said, was calculated ‘to raise doubts concerning the lawfulness and nonparti-
sanship of the Federal Constitutional Court’. Adenauer pled with Dehler to say nothing in
response to the motion and to remain ‘as calm as possible’. ‘The statement in Ems’, the chan-
cellor wrote, ‘was not very fortunate’.101 While Adenauer was laconic, Heuss was indignant.
Dehler’s remarks about the Court, Heuss wrote, were ‘impossible’. The insult to ‘the judges
themselves’ was ‘simply too injurious’. After reading the full report of the speech, Heuss
sent Dehler an even sharper missive. The second message suggested that the personal bond
between Dehler and Heuss had been severed.102
Dehler thus found himself with his party fraying internally; his friends turning against
him; his chancellor upbraiding him; the Bundestag deliberating whether to censure him;
and his justice ministry certain (he thought) to lose the most important legal case in its his-
tory. His political world was crumbling, and lurking behind the debacle he saw everywhere
the figure of Adolf Arndt.
It was under these circumstances that Dehler learned of Arndt’s 20 November let-
ter to Laforet. Dehler responded with a bare-fisted personal attack. He wrote to Laforet
on 2 December, explaining that for some time he had had in his possession a copy of a
letter, dated 9 April 1933, in which Arndt petitioned National Socialist authorities for a
promotion. In the letter, Arndt explained that in criminal cases he had helped to secure
mild judgments against National Socialist defendants. Dehler drew the following

96  In Wengst, Thomas Dehler (n 35) 186. 97 ibid 187.

98  ibid 211 (Adolf Arndt to Wilhelm Laforet, 20 November 1952). 99 ibid 209.
100  See ‘Der Bundesjustizminister und seine juristischen Gegner’ General-Anzeiger (3 December 1952); ‘Im

Schatten von Karlsruhe’ Stuttgarter Zeitung (6 December 1952).

101  In Wengst, Thomas Dehler (n 35) 209. 102  ibid 209–10.
 Judicial Politics 19

conclusion: ‘Dr. Arndt grossly offended, on self-seeking grounds, his duties as a judge….

He broke his judicial oath. He who today takes it upon himself to sit in judgment on the
political pasts of others, bragged to the National Socialist rulers of having issued judgments
in their favor’. Arndt’s character, Dehler added, had not changed since 1933. He was utterly
unfit for the role he arrogated to himself in West Germany’s political and public life.103
Adenauer himself backed Dehler in a written statement, denouncing Arndt as ‘unworthy’,
as one whose ‘malevolent game endangers our State’.104 Days later Dehler, from the floor of
the Bundestag, inveighed against the ‘malicious attempt’ of Arndt and his SPD colleagues
‘to abuse law and justice’.105
Needless to say, the justices of the Federal Constitutional Court were less than flattered
by Dehler’s noisy suggestion that they were becoming pawns in the hands of Adolf Arndt.106
Nor were the judges amused to be made the subjects of serial nose-counting in the popular
press. At the very time the Court was battling for its institutional independence, its mem-
bers resented the ubiquitous assumption that their votes in a matter of compelling national
urgency would be dictated by partisan considerations. More galling still were government
efforts to intimidate them. A government bulletin of 26 November 1952, for instance, con-
cluded in dramatic, menacing tones:
The Federal Constitutional Court has constantly declared in its jurisprudence that it does
not wish to interfere in the legislative organs’ political freedom of decision.… The reason for
this constant jurisprudence lies close at hand: Karlsruhe wishes to remain a court and not to
become a political parallel government [Nebenregierung] that must cloak its political decisions
in juristic garb. Should Karlsruhe depart from this standard even once, it would mean the end
of German constitutional justice.107

The ‘end of German constitutional justice’ might have referred to an irreparable loss of
legitimacy—a serious enough fate. But the phrase also, and none too subtly, threatened
the Court with outright abolition. The justices were fighting, and knew they were fight-
ing, for their legitimacy and their institutional life. When the government followed this
bully-pulpit lecture with another gambit of procedural manipulation, the justices’ cup of
gall spilled over.
When the Bundestag began its second reading of the EDC legislation in early December
1952, the Adenauer government was convinced that the Court’s plenary advisory opinion
would condemn the treaties as unconstitutional. The chief justice had hinted by letter that
this might happen; Otto Lenz, Adenauer’s chief of staff, reported positively that it would.
Dehler related to a small circle of journalists in late March 1953 that the government knew
in December that the plenum would vote against it.108
Convinced that the advisory opinion ploy had backfired, the cabinet fired back with
another. In a second procedural ruse, the government sought to preempt a negative judg-
ment from the (now) reportedly hostile Plenum with a positive judgment from the (still)
presumably friendly Second Senate—just as in June it had sought to preempt the expectedly
unsympathetic First Senate with an appeal to the ostensibly amicable Plenum. The idea,

103 ibid. 104  ibid 212–13.

105 
In Gosewinkel (n 35) 336. Arndt’s SPD colleagues issued a declaration of solidarity. See ‘Vertrauen für
Arndt’ FAZ (8 December 1952).
106  This was a frequent theme of Dehler’s private correspondence as well. See Gosewinkel (n 35) 332.
107  Stiertom Moehlen, ‘Die Verfahrensfrage der Bonner Verträge vor dem Bundesverfassungsgericht’ Bulletin

des Presse- und Informationsamtes der Bundesregierung (26 November 1952), BAK B 136/990.
108  See Baring (n 82) 239.
20 Consolidation, 1951–1959

Dehler claimed, was his own—a brazen bid to manipulate not only the Court’s procedures,
but the government’s own earlier attempt to manipulate those procedures.109
The government unveiled its second subterfuge on 5 December 1952. After passionate
and acrimonious debate, a bare Bundestag majority had sustained the treaty on its second
reading when Adenauer rose to make an announcement that bewildered his friends and
baffled his foes. The conclusive third reading of the law, he said, would have to await yet
another appeal to Karslruhe.110 This appeal would actually accelerate the treaty’s ratifica-
tion, Adenauer explained, by forestalling a post-promulgation challenge from the opposi-
tion. At Adenauer’s instigation, the CDU/CSU Bundestag faction would file a constitutional
complaint against the SPD faction on the remarkable ground that the latter violated Article
42 GG (which guarantees majority rule in Parliament) by impeding the majority’s right to
promulgate the treaties.
Crucially, the appeal asked the Court to mediate an Organstreit (organ conflict) rather
than conduct a Normenkontrol (abstract review). This meant that jurisdiction lay with the
Second Senate rather than the First—the ‘Black’ rather than the ‘Red’.111 Moreover, prevail-
ing Court practice gave organ conflicts temporal precedence over advisory opinions (just
as it gave requests for advisory opinions temporal precedence over petitions for abstract
review). This meant that the government could secure the Second Senate’s constitutional
blessing on the treaty before the opposition could even ask the First Senate to review it.
It was an imaginative scheme, to be sure. It was also a transparent exercise in procedural,
political, and institutional manipulation.
The Court responded with an iron show of solidarity. On the morning of Wednesday,
9 December, the Court convened oral arguments in the advisory opinion proceeding.
Before the hearings began, Höpker-Aschoff astonished the assembled attorneys and inter-
national press agents with an announcement that flung the Federal Republic into constitu-
tional crisis. The chief justice read from a statement based on a general proposal by Justice
Leibholz. The statement’s tone was one of Olympian detachment; its substance a roar of
Promethean defiance.
The Court had witnessed with concern, Höpker-Aschoff began, the mounting chorus of
disparaging comments in press and political circles concerning the Court and its members.
As the appointed Guardian of the Constitution, the Court saw no need to dignify these
aspersions with a detailed response (though it noted in passing that in other countries such
remarks were sanctioned as contempt of court). The Court defended itself by vowing it
would not stoop to defend itself.
Anyone who bothered to read the Court’s published opinions, the statement continued,
would realize that the Court’s decisions were unfailingly dictated by legal and doctrinal
rather than partisan and political considerations, and that in cases with a plainly politi-
cal subject matter, the Court had scrupulously deferred to the legislature and the execu-
tive. Press and popular speculations about the outcome of the advisory opinion proceeding

109 See Uwe Wesel, Der Gang nach Karlsruhe. Das Bundesverfassungsgericht in der Geschichte der

Bundesrepublik (Karl Blessing 2004) 63.

110  The chancellor’s announcement reportedly left even some of his closest acolytes speechless. See Paul Sethe,

‘Die Gelähmte Hauptstadt’ FAZ (19 December 1952).

111  Adenauer later insisted that he hoped to put the matter before the Second Senate merely to save time. The

original division of labour between the chambers left the First Senate’s docket flooded and the Second’s nearly
bare. As of 19 May 1952, 846 cases had come before the First Senate, 424 of which remained to be decided; by
contrast, only eight cases had come before the Second Senate, three of which remained to be decided. Otto Lehr to
Konrad Adenauer (19 May 1952) BAK B 136/4436. Adenauer told justices Gerhard Leibholz and Kurt Zweigert in
February 1953, that he had been counselled that the Second Senate would resolve the question much more swiftly
than the First. See Baring (n 82) 238.
 Judicial Politics 21

were spun from whole cloth. Suggestions that one Senate might handle the same question
in a manner materially different from the other were totally unfounded. Talk of a ‘Red’ and
a ‘Black’ Senate must cease, as must tactical manipulation of the Court’s various units.
From these premises the Plenum reached a two-part decision:
First, the Court would address the President’s appeal for an advisory opinion before con-
sidering the government’s most recent petition.
Second, the decision of the Plenum in the advisory opinion proceeding would bind both
Senates in all future proceedings.112
To preempt speculation on the vote tally in these two decisions, a Court spokesman took
the rare step of announcing publicly that the participating justices sustained the decisions
by a vote of twenty to two.113
The announcement broke like a bombshell—rather to the surprise of the justices them-
selves. When government lawyers asked for a one-hour break to confer with their clients
in Bonn, an impatient Höpker-Aschoff wondered why half an hour wouldn’t suffice.114 The
justices seemed genuinely surprised by the government’s reaction to the decisions—a testa-
ment, some have felt, to the justices’ jurisprudential good faith and political naïveté.115 In
any event, half an hour did not suffice, and the proceedings were adjourned until the fol-
lowing day. In the meantime, the government begged President Heuss to make the adjourn-
ment permanent by withdrawing his request for an advisory opinion.
Heuss, once again, was reluctant. Days earlier he had made a landmark speech at the
dedication of the Holocaust memorial at Bergen-Belsen.116 After this show of statesman-
ship, Heuss was irked at being perceived again as doing the chancellor’s bidding. But he ulti-
mately went along with Adenauer’s plan. The Court’s announcement of the previous day,
ran the official explanation, had altered the stakes. A decision on Heuss’s petition would no
longer produce what he originally sought—a non-binding advisory opinion—but binding
constitutional law. A government bulletin announced Heuss’s retraction in a piece point-
edly entitled, ‘Guardian of the Constitution’—a reference to Heuss, not the Court.117 With
the petition retracted the oral arguments were cancelled. But Adenauer and Dehler com-
pensated in Bonn for the talking that wouldn’t take place in Karlsruhe.118
On the evening of 10 December 1952, Adenauer and other high officials gathered in the
cabinet room with thirty or so elite journalists for one of Adenauer’s famous ‘Chancellor’s
Teas’. During the discussion that followed, both Adenauer and Dehler were critical of
the Court—the chancellor with cautious dissent, his minister with fiery venom. Dehler
denounced the Plenum’s decision of the previous day as ‘utterly lawless’, an infringe-
ment of the Basic Law and the FCCA, a ‘nullum’ that the federal government would never
acknowledge. If he could be blunt, Dehler added, the greatest flaw in the decision was ‘not its

112  The conclusion, commonly known as the plenum’s ‘Bindungsbeschluss’, or binding decision, was reported

in 2 BVerfGE 79 (1952).
113  See ‘Telephonische Durchsage Amtmann Bendler’ (10 December 1952) BAK B 136/990. Individual jus-

tices would also write to press leaders urging that speculation about the partisan composition of the Senates
be avoided. See, e.g., Herbert Scholtissek to Chefredakteur Dr Roegele (22 December 1953) BAK N 1341/54
(Nachlass Martin Drath).
114  Der Kampf um den Wehrbeitrag, vol 2 (n 92) 806. 115  See Baring (n 82) 243.
116  Jeffrey Herf, Divided Memory: The Nazi Past in the Two Germanys (Harvard University Press 1997) 317.
117  ‘Hüter der Verfassung’ Bulletin des Presse- und Informationsamtes der Bundesregierung (12 December 1952).
118  Immediately after learning of the Court’s announcement Dehler drafted a boiling preliminary response,

which he never published. He wrote that the decision had ‘absolutely no binding authority’, was ‘legally insig-
nificant’, and that the Constitutional Court was just a court like any other. ‘When it proclaims itself to be, no
less than the Federal President, an independent constitutional organ charged with constitutional jurisdiction’,
he concluded, ‘the concern arises that it has transgressed the borders of its mandate’. Thomas Dehler, ‘Vorläufige
Stellungnahme’ (9 December 1952) BAK B 136/990.
22 Consolidation, 1951–1959

partisan character’—although that was obvious enough—‘but rather its deficient judicial
quality’. Adenauer and Dehler both indicated their intention to rein in the Court by amend-
ing the FCCA.
This was strong medicine. The assembled journalists might be forgiven if they didn’t take
seriously Adenauer’s parting request that they eschew talk of a constitutional crisis.
In any case they ignored it.119 On the morning of 11 December the daily papers rang
with cries of a ‘Crisis of State’, ‘Constitutional Crisis’, and ‘Conflict between Bonn and
Karlsruhe’.120 All papers reported the Dehlerian diatribe in luxurious detail. By and
large, press and public deplored the justice minister’s invective. Leading lawyers sent
Dehler a telegram asking him, in the name of the rule of law, to soften his tone and show
greater regard for the reputation of Germany’s highest court. But Dehler was implacable.
‘You misunderstand the situation’, he fired back. ‘The Federal Constitutional Court has
departed in an appalling manner from the path of law and has thereby created a genuine
crisis’.121 On 19 December, Dehler’s telegram became public, eliciting howls of popular
disapproval. Adenauer hurriedly distanced himself from the firebrand in his cabinet.
Later that day, in an official statement, the government affirmed its respect for the Court
and its decisions. Adenauer met personally with Heuss and Höpker-Aschoff to extend an
olive branch.122 The chancellor’s apologies were accepted. Outwardly, the crisis abated.
Privately, however, the situation remained fraught. On 22 December, Höpker-Aschoff
wrote to Dehler, highlighting in pointed terms the impropriety of public criticism by cabi-
net officials of Court decisions. Though Dehler had made such criticism a ‘beloved form’
of expression, Höpker-Aschoff considered it a ‘sin against the idea of the Rechtsstaat’.
Höpker-Aschoff also lectured Dehler about his public quarrel with Adolf Arndt: ‘If you wish
at all costs and at all times to conduct a tempestuous battle with the opposition, then you must
abandon your office and play politics as an MP’.123 Dehler may have been grateful at this point
that Adenauer had persuaded him not to send a letter he had written to Höpker-Aschoff on
11 December. In that letter, Dehler cited a series of judgments he thought questionable or
flatly wrong, and he accused the justices of ‘misunderstanding the mission and purpose of
the Federal Constitutional Court’ and of embarking on a course that would lead, in process
of time, to ‘a serious upheaval of our law and our State’.124 As 1953 dawned, the old friends
made peace. A self-deprecating Dehler promised, during the New Year, to be on his best
behavior.125

119  Der Spiegel reported Adenauer’s request in a piece impishly entitled, ‘Staatskrise’. See ‘Staatskrise—

Montesquieu ist Schuld’ Der Spiegel (17 December 1952). See also ‘Verfassungskrise’ Deutschland-Union-Dienst
(9 December 1952) 1; ‘Lenz: Unerfindliche Entscheidung’ Die Welt (10 December 1952); ‘Adenauer bittet Heuss
Gutachten zurückzuziehen’ General-Anzeiger (10 December 1952); ‘Staatskrise’ FAZ (10 December 1952);
‘Warum Karlsruhe’ Die Welt (10 December 1952); ‘Verwirrung in Bonn’ Düsseldorfer Nachrichten (10 December
1952); ‘Die Kehrtwendung der Koalition’ Deutsche Zeitung (10 December 1952); ‘Ein gerissener Schachzug’
Deutsche Zeitung (10 December 1952); ‘Verfassungskrise? Staatskrise’ Welt am Sonntag (14 December 1952).
120  See, e.g., ‘Verstoβ gegen das Grundgesetz’ Die Welt (11 December 1952); ‘Bücher übt scharfe Kritik’ Die

Welt (11 December 1952); ‘Wagner: Eine Staatskrise’ FAZ (11 December 1952); ‘Noch keine Entscheidung’ FAZ
(11 December 1952); Hans Heinrich, ‘Minen am Grundpfeiler’ Frankfurter Rundschau (11 December 1952); ‘Zug
um Zug’ Frankfurter Neue Presse (December 11, 1952); ‘Die Entscheidung des Bundespräsidenten’ Die Welt (11
December 1952); ‘Ein Haufen Scherben’ General-Anzeiger (11 December 1952); Walter Fredericia, ‘Der Präsident
und das Gericht’ Die Zeit (11 December 1952).
121  Telegram from Thomas Dehler to Wilhelm Zutt and Dr Geiler (10 December 1952) BAK B 136/990.
122  See ‘Integrierender Bestandteil des demokratischen Rechtsstaates’ Bulletin des Presse- und Informations­

dienstes der Bundesregierung (19 December 1952).

123  In Wengst, Thomas Dehler (n 35) 217.
124  Thomas Dehler to Hermann Höpker-Aschoff (11 December 1952) BAK B 136/990. Adenauer wrote to

Dehler on 16 December, asking his justice minister not to write to Höpker-Aschoff until the storm of controversy
had time to settle. Konrad Adenauer to Thomas Dehler (16 December 1952) BAK B 136/990.
125  See Wengst, Thomas Dehler (n 35) 218.
 Judicial Politics 23

But New Year’s resolutions are hard to keep. Dehler was an irascible man under
e­ normous pressures. He faced two censure motions in the Bundestag, and he worried
restlessly about the fate of the treaties, which he regarded as the existential sine qua non
of postwar German democracy. He responded to the censure motions with sarcasm and
scorn, telling FDP press chief Josef Ungeheuer that he would be ‘deeply concerned’ if the
SPD approved of him.126 Dehler also continued to insist that it was his inescapable duty to
tell the Court ‘that it has taken an erroneous path and exceeded its authority’. He simply
couldn’t keep silent. ‘I would rather sacrifice my office’, he vowed, ‘than passively observe
when danger threatens People and State’.127
When the Bundestag considered the SPD censure motions in March 1953, Dehler was
his old implacable self. He lambasted the Court’s pretentions with an epithetical omnigath-
erum. The justices had crowned themselves a ‘supra-government’, a ‘supra-parliament’—
the ‘masters of the constitution’ rather than its guardians: Herren rather than Hüter. It was
the duty of his office, Dehler insisted, ‘carefully to oversee the jurisprudence of the Federal
Constitutional Court’.128 The censure motion failed; but cabinet and coalition distanced
themselves from Dehler’s unrepentant harangue.
The chief justice publicly contradicted it. In a 14 March radio broadcast, Höpker-Aschoff
vigorously denied Dehler’s suggestion that the Court coveted power and firmly rejected
Dehler’s assertion of a supervisory duty.129 The conservative Frankfurter Allgemeine Zeitung
saw in this public retort from the sitting chief justice a ‘frightful’ spectacle, but conceded
that Dehler’s intransigence had left the Court no other option. Before 1933, the article con-
cluded, such an assault by a minister of justice on the independence of a court would have
been unthinkable.130 Dehler’s public response to Höpker-Aschoff’s radio speech was muted;
his private reaction was incensed.131 Outwardly, the two were once more reconciled. But
persons close to both men knew their friendship was over.
The jurisprudential backdrop to this latest squabble was the Second Senate’s decision of
7 March, in which the Court rejected as inadmissible the Union faction’s Organstreit peti-
tion against the SPD minority.132 That rejection was sharply stated. The decision’s technical
hinge was the Senate’s ruling that parliamentary groups were not ‘Organteile’ (parts of a
constitutional organ) with the right of appeal in an Organstreit. But its substantive core was
the Senate’s insistence that a parliamentary majority suffers no legal injury when the oppo-
sition speaks its mind. On this point, the judgment read like a primer on democratic first
principles: ‘It is not only the right of the opposition to voice its political and constitutional
reservations’, the justices wrote; ‘in a parliamentary democracy, it is their duty’.133 The gov-
ernment’s position, by contrast, would make the opposition’s expression of constitutional
reservations a constitutional offence. Were the Court to adopt this stance, it would upend
‘the right to free speech of members of Parliament’—a right the Court characterized as
the very ‘lynchpin of a parliamentary-democratic constitution’.134 The Senate closed with a
curt retort to talk of the Court’s politicization: ‘Whether and what political consequences’

126 ibid 219. 127 ibid. 128 ibid 220.

129  Hermann Höpker-Aschoff, Rundfunkrede (14 March 1953)  text in BAK B 136/4436. Höpker-Aschoff
explained to Adenauer that he regretted making his row with Dehler public, but that Dehler’s truculence had
driven him to it. Hermann Höpker-Aschoff to Konrad Adenauer (16 March 1953) BAK B 136/4436.
130  ‘Flucht in die Öffentlichkeit’ FAZ (17 March 1953).
131  Dehler privately called the justices ‘a demoralized heap of interested parties’. And he reportedly explained

to Robert Strobel of Die Zeit that he was conciliatory towards Höpker-Aschoff because the chief justice was ‘a
sick old man, who perhaps will die soon. I didn’t want, at some later date, to have to upbraid myself with having
refused to receive him’. In Wengst (n 25) 221.
132  2 BVerfGE 143 (1953).    133  ibid 170–71.   134 ibid 171.
24 Consolidation, 1951–1959

might stem from this decision, the Senate concluded, ‘may play no role for the Federal
Constitutional Court. It must decide according to law alone’.135
The Court’s disinclination to be manipulated or bullied was by this point quite clear,
even—perhaps especially—to the Adenauer government. The Court had also exposed
limitations on the predictive power of presumed party allegiance. Thrice in nine months
the Court had overthrown partisan expectations. In July 1952, the First Senate had ruled
against the SPD; in December 1952, the Plenum against the government; in March 1953, the
Second Senate against the CDU/CSU parliamentary faction. Talk of the Red and the Black
seemed better suited to French fiction than to German constitutional law.
The press was quick to note the Court’s non-partisan independence and to praise it. The
Swiss journalist Fritz René Allemann—soon to win fame and supply an international buz-
zword with his 1956 book Bonn is not Weimar—wrote in the Stuttgarter Zeitung that critics
of the Court’s partisan composition operated at a purely theoretical level. The Court had
thoroughly refuted their assumptions in practice.136 Many other journalists—including
some who called loudly for the Court’s institutional reform—agreed.137 ‘All in all’, sum-
marized Hans Schuster in the Süddeutsche Zeitung, ‘the Karlsruhe Court has preserved
its authority in laudable independence, all whispering about a “red” and a “black” Senate
notwithstanding’.138
Having conspicuously exercised its independence in practice, the Court was soon granted
independence by statute. Eleven days after the Second Senate rejected the government’s
Organstreit petition, the Bundestag opposition proposed for the Court a separate budget,
which both chambers of Parliament approved three months later. In the EDC case itself, the
upshot of so much procedural and institutional sound and fury was that fourteen months
after the first prophylactic petition from the SPD, the Constitutional Court had yet to rule
on the merits of a law that Parliament had yet to pass.
In May 1953, Parliament finally approved the law ratifying the Germany and EDC
treaties—five months after Adenauer’s second ill-starred exercise in procedural coup-de-
main. With the law formally enacted, Social Democrats in the Bundestag promptly asked
the First Senate to declare it unconstitutional. The Senate’s response was less than alacri-
tous. New Bundestag elections loomed in September, carrying with them the possibility
of a CDU victory sufficiently sweeping to allow the governing coalition, by a two-thirds
parliamentary supermajority, to secure the treaty by constitutional amendment. The jus-
tices may not have intended to follow the election returns; but they were willing at least to
await them.
This is not to say that internal debate ceased. The justices of the First Senate conducted a
vigorous discussion of the case’s merits throughout the summer of 1953.139 Justice Konrad
Zweigert sparked the discussion with a memo explicitly invoking the ‘political question’
doctrine of the United State Supreme Court and suggesting that several ‘particulars’ of
the EDC case raised seriously the question whether the treaties’ constitutionality was
­justiciable.140 Justice Leibholz had invoked the political question doctrine during the

135 ibid 181.
136  F.R. Allemann, ‘Demokratie ohne Tradition’ Stuttgarter Zeitung (16 February 1953) 1.
137 See, e.g., Wilhelm Throm, ‘Was ist in Karlsruhe reformbedürftig’ FAZ (16 December 1952); Hans
Baumgarten, ‘Nicht Götter und nicht Partei’ FAZ (6 December 1952).
138  Hans Schuster, ‘Weiser und gerechter Richter’ Süddeutsche Zeitung (17 March 1953) 1.
139 See Konrad Zweigert, Diskussionsbetrag zur Frage der Justiziabilität der Normenkontrolle über die

Vertragswerke (10 July 1953)  (marked ‘Secret’); Erwin Stein, Bemerkungen (13 July 1953); Martin Drath,
Bemerkungen zu den Stellungnahmen der Herren Kollegen Dr Zweigert und Dr Stein (21 July 1953), all in BAK N
1129/32 (Nachlass Höpker-Aschoff).
140  See Zweigert (n 139).
 Judicial Politics 25

Plenum’s discussions the previous December,141 and Höpker-Aschoff—who for months had
longed for a political resolution of the conflict,142 which he termed an ‘almost unbearable
burden’143—was intrigued by this potential means of escape. In Höpker-Aschoff’s personal
papers are some handwritten notes on the political question doctrine, including extensive
annotations on the American law review articles cited in Zweigert’s memo.
While the justices pondered American doctrine they also scrutinized West German
politics. The justices defended their Fabian approach on democratic, rather than prag-
matic grounds. In a lecture at the Technical University in Karlsruhe, given 24 June 1953,
Höpker-Aschoff said of the EDC proceeding:
[T]‌his history will not be decided today or tomorrow, but only after the elections. Perhaps this
is just as well … for the political landscape changes from day to day. A politician can conceive
of various possibilities of foreign and domestic politics that will perhaps make a judicial deci-
sion concerning these treaty laws entirely superfluous.144

The chief justice’s hopeful tone was unmistakable. The political representatives of the West
German people, he hoped, not the judges of the Federal Constitutional Court, would decide
the crucial questions of rearmament and Western integration.
Events did not disappoint him. At the September polls, the CDU scored a dramatic vic-
tory. With its coalition commanding a two-thirds parliamentary majority, the government
could—and did—amend the constitution to allow the treaties.
Even so, the SPD refused to surrender. It argued that the new constitutional amend-
ment was itself unconstitutional. The notion was paradoxical but not preposterous.145
The Basic Law banned amendments undermining the social, federalist structure of the
Federal Republic, or the principles of human dignity, separation of powers, popular sov-
ereignty, and the rule of law.146 The Court’s jurisprudence had already acknowledged
the theoretical possibility of unconstitutional constitutional amendments.147 The SPD
argued that the treaties infringed principles declared sacrosanct by the ‘eternity clause’ of
Article 79 GG, and that therefore the amendments enabling the treaties were themselves
unconstitutional.
When he presented this argument publicly, Arndt summoned an unlikely theoretical
ally:
Article 79 allows only a limited power to amend or complete the constitution. But even if
Article 79 was not in the constitution, there would still be a material limit on constitutional
amendment. This is an insight that we owe to the work of Carl Schmitt. I have no hesitation
at all in citing the devil; for sometimes the power that constantly negates also creates good.
People like Carl Schmitt or Ernst Jünger … have, through [a]‌kind of debris-clearing, fulfilled
a thoroughly positive historical function.148

141 
Baring (n 82) 228.
142 
See Hermann Höpker-Aschoff to Otto Lenz (16 December 1952) BAK B 136/990.
143  In Schuster (n 138) 1.
144  Hermann Höpker-Aschoff, Stellung und Aufgaben des Bundesverfassungsgerichts (24 June 1953) BAK N

1129/30.
145  For an international survey of the idea of unconstitutional constitutional amendments, see Yaniv Roznai,

‘Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea’ (2013) 61

Am. J. Comp. L. 657.
146  See Article 79(3) GG. 147  See 2 BVerfGE 1 (1952).
148  Protokolle der 7. Sitzung des Bundestagsauschusses für Rechtswesen und Verfassungsrecht (19 February

1954).
26 Consolidation, 1951–1959

In Arndt’s view, Schmitt’s great negative contribution was to discredit a brand of legal pos-
itivism that placed no limits on the lawgiver or constitution-giver even before National
Socialism rendered that theory untenable.149
From his ‘exile’ in Plettenberg, Schmitt smiled at this backhanded compliment.150 His
own concern, as he told Horst Ehmke, was not that the power of ordinary or constitutional
lawmakers would go unchecked, but that the Constitutional Court itself would ‘become the
nesting place of apocryphal acts of sovereignty’. This was sure to happen, Schmitt sniped,
‘if one so fantastically expands the legal force of its grounds of decision as is now thought-
lessly occurring’.151 Arndt, who could not have been further from Schmitt’s preoccupations
of the 1950s, invoked Schmitt’s precept of the 1920s in asking the First Senate to invalidate
the new amendments. He filed a petition to this effect, and the First Senate fixed oral argu-
ments for October 1954.
They never took place. When October arrived the question was moot. A new threat to
the treaties—this one fatal—emerged not from the opposition in Bonn or the Court in
Karlsruhe, but from the National Assembly in Paris. After months of mounting hostility to
the treaties among the French populace and political class, the National Assembly voted to
reject them on 30 August 1954. The Constitutional Court never passed judgment on their
constitutional merits.
The demise of the treaties in Paris, however, marked little more than a temporary hitch
in Adenauer’s policy of Western integration. In fact, the Parisian debacle substantially
increased his bargaining power. In October 1954, when the Constitutional Court might
have been hearing oral arguments in an extraordinary challenge to the constitutionality
of constitutional amendments, a multi-power conference in Paris rescinded the occupa-
tion statutes, made the Federal Republic a member of NATO, vested it with nearly com-
plete national sovereignty, and authorized it to create a national army. The French National
Assembly ratified these ‘Paris Treaties’ at the end of 1954; the German Bundestag and
Bundesrat followed suit in February and March of the following year. After some birth
pangs, the West German Bundeswehr (Federal Army) grew steadily after 1956. The Federal
Republic’s integration within the NATO West proceeded apace.
The Federal Constitutional Court did nothing, in the long run, to hinder this devel-
opment. And perhaps the justices had no wish to do so. But in the controversy over the
European Defence Community, the Court survived an institutional crisis and secured the
public’s esteem. More significant still, it had consolidated its self-understanding as a court.
In the Status Memo, the Court had defined itself in theory; in the EDC case, it had done so
in practice.
And it had done so with only one dissent. Crucial in this connection was the con-
version, prodded by perceived bullying from the Adenauer government, of Hermann
Höpker-Aschoff, the chief justice. After dissenting from his colleagues in the Status Memo
debate, Höpker-Aschoff became the mouthpiece of solidarity during the EDC contro-
versy. Höpker-Aschoff’s increasing alienation from the truculent Thomas Dehler certainly
played a role in this transition. So, perhaps, did the long memory of Adenauer’s callous
letter asking Höpker-Aschoff to withdraw his candidacy for the Court’s presidency. In any
case, Höpker-Aschoff, who once bristled at the thought of removing to ‘horrible Karlsruhe’,
became a symbol of the Court’s settled independence.

149  In his Verfassungslehre (‘Constitutional Doctrine’) (Duncker and Humblot 1928), Schmitt had argued

that no constitutional amendment could alter the basic decision (Grundentscheidung) or fundamental norm
(Grundnorm) animating the constitution.
150  Carl Schmitt to Werner Weber (17 May 1954) BAK N 1529/44 (Nachlass Werner Weber).
151 ibid.
 Judicial Politics 27

Höpker-Aschoff died, in Karlsruhe, on 15 January 1954, sixteen days shy of his seventy-first
birthday and months before the final resolution of the EDC row. The public mourned the
chief justice’s passing; the press sang his praises. Newspapers lauded Höpker-Aschoff for
his independence and devotion to the rule of law, eulogizing him as the ‘Guardian of the
Rechtsstaat’ and ‘Conscience of the Nation’.152 ‘No one else in the country’, one eulogist
wrote, ‘has done more than Höpker-Aschoff to bring before the world the reputation of our
State—born in great pain and under many limitations—as a Rechtsstaat. One mustn’t forget
this amid so much talk of the façade of the so-called “German miracle.”’153
Though the economic miracle continued to dazzle, the work of the Constitutional Court
had become, at least for some, the source of a deeper—a moral—legitimacy for the new
state. By refusing to bow before political pressures or to brook bids at political manipula-
tion, the Court gave many citizens confidence that the Rechtsstaat had been restored. In a
country in which many prized the rule of law more than democracy, this perception did
much to secure for the Court the public’s enduring trust. In the years that followed, as
democratic values gained popular footing, many observers celebrated the Court’s earlier
vindication of the rule of law as a precondition of democratization. In its first and greatest
institutional crisis, the Court had declared fearlessly and unitedly that the postwar West
German state was ruled by laws rather than politicians. The Court thereby earned a kind of
capital that later allowed it to restrain the country’s politicians directly without provoking
opposition on democratic grounds.
The Court emerged from the EDC controversy with enormous prestige. The same was
not true of another major player in the EDC contest—one who witnessed the contro-
versy’s conclusion from the sidelines. The 1953 elections that swept the coalition parties
to unprecedented power swept Thomas Dehler out of the ministry of justice. An ailing
Höpker-Aschoff, joined by several of his colleagues, told Adenauer he would resign if Dehler
were re-appointed.154 Theodor Heuss, for his part, threatened not to sign such a renewal.
Dehler left office on 20 October 1953, replaced by an FDP peer, the sixty-nine-year-old Fritz
Neumayer. Neumayer was quick to announce a more emollient posture vis-à-vis the Court.
He promised at the swearing in of Josef Wintrich as Höpker-Aschoff’s successor that he
would ‘not treat this Court as a subject of his own competence, but [would] regard it as a
constitutional organ, toward which he felt drawn by the kinship of certain duties’.155 In
future years Dehler, as an MP, would speak out in the Court’s defence and was even recon-
ciled with Adolf Arndt. His successors in the justice ministry would occasionally quarrel
with the Constitutional Court. But none would ever dispute the Court’s stature as supreme
Guardian of the Constitution, nor offer his services as guardian of the guardians.
In the years to come, the SPD, led as ever by Adolf Arndt, challenged other diplomatic
products of Adenauer’s Western policy before the Constitutional Court. Each time, the
Court approved the challenged measure with notable deference.156 The justices would bow
before no government attempt to bully it into acquiescence; but having stood its institutional
ground, the Court was quick to place its constitutional imprimatur on government policy.
Never in the 1950s did the Court invalidate a major initiative of the Adenauer government.

152  See Friedrich Noppert, ‘Respekt vor einem unabhängigen Richter’ Deutsche National-Zeitung (16 January

1954); ‘Gewissen der Nation. Höpker-Aschoffs Tod’ Rheinischer Zeitung (18 January 1954); ‘Der Hüter des
Rechtstaates’ Deutsche Zeitung und Wirtschafts-Zeitung (20 January 1954).
153  Hans Schuster, ‘Er baute dem Recht ein festes Haus’ Süddeutsche Zeitung (18 January 1954) 3.
154  See Erich Mende, Die neue Freiheit, 1945–1961 (Herbig 1984) 381.
155  Fritz Neumayer, Ansprache an der Amtseinführung von Josef Winter als Bundesverfassungsgerichtspräsident

BAK B 136/4436.
156  See, e.g., 2 BVerfGE 347 (1953); 4 BVerfGE 157 (1955); 6 BVerfGE 290 (1957).
28 Consolidation, 1951–1959

But never, on the other hand, did it recognize any limits on its power to do so. Indeed, the
most enduring legacy of the early Court’s foreign policy judgments lay in what the justices
did not decide—namely, that questions of a certain political pitch and moment lay outside
its jurisdiction. If ever a case furnished a brilliant opportunity for the Court to fashion
a German political question doctrine, that case was the controversy over the European
Defence treaties. Expert legal opinion was fiercely divided and the political stakes were
nothing short of existential. The justices were sorely tempted, and the historian is tempted to
hazard that, had a ruling on the constitutional merits of the treaties proved otherwise ines-
capable, the First Senate would have escaped it by articulating a political question doctrine.
But, in the end, they had no chance or need to do so. The Parisian death of the treaties
meant not only that the Court would never assess the treaties’ constitutionality, but also that
it would never avoid doing so by pleading a political question. The precedential force of this
non-decision, however, was not that the matter remained open, but that it seemed firmly
decided against a political question doctrine. The most explosive foreign policy conflict of
the early Federal Republic had come before the Constitutional Court and concluded with
no suggestion from the Court that the matter was not justiciable. In the months that fol-
lowed, foreign policy questions of lesser moment came before the Court and were disposed
of in a manner deferential to the government’s position but unyielding on the Court’s juris-
diction. The upshot of these precedents was that constitutional questions incident to for-
eign policy—and, by implication, to political questions generally—were all justiciable. The
consolidation of such universal constitutional jurisdiction was the most enduring political
development of the Court’s first decade. Combined with epochal doctrinal developments
later in the decade, this jurisdictional breadth would give dramatic substantive weight to
the Court’s self-appointed role as Guardian of the Constitution.

III.  Judicial Supremacy and the Politics of the Past

The Court’s great institutional clash with the executive branch was followed in short order
by a dramatic confrontation with other organs of the judiciary. Having battled for inde-
pendence vis-à-vis the political branches, the Court now fought for supremacy vis-à-vis
other courts. In the course of this conflict, the Court confronted the Gorgon of the Nazi
past. This confrontation was intensely controversial, provoking the opposition of the legal
academy like no set of judgments before or since. At the time, the Court’s stance won it few
friends. But when the dust settled, the Court had no rivals within the German judiciary.
And the moral high ground the Court assumed would later become a source of enormous
legitimacy. In its forceful repudiation of the Nazi state, and in its definition of the Federal
Republic in opposition to its predecessor, the Constitutional Court was unique among the
supreme institutions of the early Federal Republic. The Court set in motion what the his-
torian Norbert Frei has called ‘an arc of high-court decisions in the field of Past Politics
[Vergangenheitspolitik] that accompanied the transformation process of the post-National
Socialist Volksgemeinschaft into the society of the Federal Republic’.157 It is difficult to dis-
pute, Frei added, that ‘the interventions of the Federal Constitutional Court assisted in the
development of a democratic ethos’.158

157 Norbert Frei, ‘Transformationsprozesse. Das Bundesverfassungsgericht als vergangenheitspolitischer

Akteur in den Anfangsjahren der Bundesrepublik’ in Michael Stolleis (ed), Herzkammern der Republik. Die
Deutschen und das Bundesverfassungsgericht (CH Beck 2011) 64, 81.
158  ibid. See also Brun-Otto Bryde, ‘Der Beitrag des Bundesverfassungsgerichts zur Demokratisierung der

Bundesrepublik’ in Robert Chr. van Ooyen and Martin HW Mӧllers (eds), Das Bundesverfassungsgericht im
politischen System (Springer Verlag 2006) 321.
 Judicial Supremacy and the Politics of the Past 29

A.╇Nazi-era civil servants

The underlying issue of the conflict among the courts was a federal law, mentioned ear-
lier, passed on 11 May 1951 pursuant to Article 131 GG.159 One of the prickliest points of
debate in the Parliamentary Council concerned the status of Nazi-era civil servants in the
new West German state. Underlying this question was a fierce tension between the Allied
occupiers’ desire for a de-nazified state and the inescapable fact that the individuals with
the experience and expertise needed to administer the new state had almost all served the
Third Reich. This tension raised agonizing questions. What would be the status of Nazi-era
civil servants in the legal order of the Federal Republic? What effect did the dissolution of
the German state following the unconditional surrender of 8 May 1945 have on the legal
standing of its civil servants?
To these questions the Parliamentary Council responded with a spectacular punt. Article
131 GG provided that the legal standing of civil servants would be settled by future legisla-
tion. Parliament responded to this mandate two years later by passing what became known
as the ‘131 Law’, or ‘G 131’.
The law was a compromise measure, guaranteeing a form of transitional insurance
(around 55 per cent of lost salary) to deposed civil servants and providing an extensive right
of reappointment that excluded only former members of the Gestapo. The law breathed
the restorative spirit of the times.160 Its impulse was reconciliatory and its terms generous.
Its immediate effect was the widespread integration of Nazi-era civil servants within the
administrative apparatus of the Federal Republic.
Even so, the law elicited cries of protest from the civil servants it affected. The courts were
flooded with complaints from aggrieved bureaucrats concerned with more than the recov-
ery of wages and benefits. The question was partly economic—not everyone recovered posts
or pensions—but mostly moral. At issue was the civil servants’ relationship to the Nazi
regime and responsibility for its crimes. The law had failed formally to dissociate Nazi-era
civil servants from the regime that employed them. The ‘131-ers’ cast their complaints as a
question of honour.161
They found a receptive audience with Hermann Weinkauff, president of the Federal Court
of Justice (FCJ), the country’s supreme court of civil and criminal jurisdiction.162 Within the
federal judiciary, Weinkauff led the charge against G 131—and against what he perceived
as the pretension and encroachments of the Federal Constitutional Court. Remembered by
colleagues and even family members as introverted and aloof, Weinkauff, though he never
joined the Nazi party, spent much of the period from 1933 to 1945 as an assistant and judge
on the notorious third criminal chamber of the Reichsgericht.163 The third chamber was

159╇For background on the Article 131 law and the controversy that followed, see Michael Kirn,

Verfassungsumsturz oder Rechtskontinuität? Die Stellung der Jurisprudenz nach 1945 zum Dritten Reich, insbe-
sondere die Konflikte um die Kontinuität der Beamtenrechte nach Art. 131 Grundgesetz (Duncker and Humblot
1972); Frei (n 8) 69–101; Udo Wengst, Beamtentum zwischen Reform und Tradition: Beamtengesetzgebung in
der Gründungsphase der Bundesrepublik Deutschland 1948–1953 (Droste 1988); and Wolfgang Langhorst,
Beamtentum und Artikel 131 des Grundgesetzes:  Eine Untersuchung über Bedeutung und Auswirkung der
Gesetzgebung zum Artikel 131 des Grundgesetzes unter Einbeziehung der Position der SPD zum Berufsbeamtentum
(Oldenbourg 1994).
160╇ In his hugely influential Vergangenheitspolitik (Politics of the Past, 1996), Norbert Frei cites G 131 as a sin-

gular instance of the Adenauer-era politics of amnesty and amnesia. See Frei (n 8) 69–101.
161╇ See ibid 71.
162╇On Weinkauff, see Daniel Herbe, Hermann Weinkauff (1894–1961):  Der erste Präsident des BundesÂ�

gerichtshofs (Mohr Siebeck 2008). On the early history of the Federal Court of Justice, see Klaus-Detlev
Godau-Schüttke, Der Bundesgerichtshof: Justiz in Deutschland (Tischler 2005).
163╇ See Herbe (n 162) 2.
30 Consolidation, 1951–1959

infamous for its so-called ‘blood protection jurisprudence’, and although Weinkauff didn’t
participate in these cases, he frequently acted as rapporteur of judgments in which the third
chamber reviewed cases involving ‘dangerous habitual criminals’—a notion aimed at per-
sons genetically and racially disposed to a life of crime.164 In 1938, the regime awarded
Weinkauff the silver Medal of Honour in acknowledgement of his twenty-five years of ‘loyal
labour in the service of the German people’.165
Weinkauff’s postwar career was furthered by another jurist who locked horns with the
Constitutional Court. In May 1947, Weinkauff joined the Bamberg Jurists Society, where
he drew the notice of the society’s founder, Thomas Dehler. In September 1949, Weinkauff
replaced Dehler as president of the Bamberg Court of Appeals. In early 1950, Dehler unsuc-
cessfully urged Adenauer to appoint Weinkauff to replace Walter Strauβ as State Secretary
in the justice ministry. Later that year Dehler secured Weinkauff’s appointment as found-
ing president of the Court of Justice. At the opening of the new FCJ building in October
1950, Dehler eulogized Weinkauff as ‘the model for German judges, the measure to which
they should conform’.166 In 1951, Dehler pushed unsuccessfully for Weinkauff’s nomina-
tion as first chief justice of the Federal Constitutional Court.167 Had he succeeded, we might
be telling a very different story.
Weinkauff was one of Dehler’s confidantes as the justice minister brooded and blustered
about the incipient might of the Constitutional Court. In December 1952, at the height of the
European Defence Community controversy, Dehler wrote to Weinkauff: ‘Not everyone is
aware what dangers for law and for justice proceed from the Constitutional Court. Perhaps
you will have understood why I have loudly opposed the beginning of a development that
can only end in catastrophe’.168 The next summer, after a standing committee of the German
Jurists’ Convention issued a circular supporting the Court’s position in the Status debate,169
Weinkauff assured Dehler of his dissent from the circular. ‘I think it worthwhile to explain’,
Weinkauff noted, ‘that by no means do I share this opinion, that I consider the action of the
standing deputation uncalled-for, and I condemn it’.170 Weinkauff shared Dehler’s disqui-
etude about the Constitutional Court, and he passionately opposed the premises, if not the
substance, of G 131. These two impulses united in a dramatic confrontation between the
two federal courts sitting in sleepy Karlsruhe.
Before G 131 was promulgated, the Court of Justice’s Third Civil Senate declared the law’s
basic concept constitutionally sound.171 But in the months that followed, the First Civil
Senate and the Grand Senate for Civil Matters, both presided over by Weinkauff, questioned
the law’s constitutionality. The Grand Senate did so implicitly in a formal decision;172 the
First Civil Senate did so explicitly in an advisory referral opinion.173
Referral opinions were a novelty. The Basic Law granted plenary constitutional jurisdic-
tion to the Constitutional Court. The FCCA originally provided that lower courts could not
refer constitutional questions directly to Karlsruhe, but must route them instead through
the relevant federal supreme court.174 Constitutional referrals in civil and criminal cases
went through the Federal Court of Justice; in labour law cases, through the Federal Labour

164  See ibid 44. According to Herbe, Weinkauff’s record in these cases is impossible to judge—the relevant

records are locked away in Moscow. ibid 45.

165 ibid 53–54. 166  Thomas Dehler, ‘Weinkauff zum 70. Geburtstag’ (1964) 17 NJW 489.
167  ibid 78, 82, 84–86, 93. 168  In Wengst (n 25) 218.
169  ‘Deutscher Juristentag, Ständige Deputation, Rundschreiben Nr. 2/1953’ (9 June 1953)  copy in BAK B

136/4436.
170  Hermann Weinkauff to Thomas Dehler (16 June 1953) BAK B 136/4436.
171  1 BGHZ 274, 275ff (1951); See also 14 BGHZ 138 (1954). 172  6 BGHZ 208 (1952).
173  11 BGHZ, Anh. 1 (1952). 174  See BVerfGG § 80(1).
 Judicial Supremacy and the Politics of the Past 31

Court; and so on. The federal court then relayed the matter to the Constitutional Court,
often appending a detailed advisory opinion that proposed how the constitutional question
should be resolved. Weinkauff’s Federal Court of Justice filed such advisory opinions fre-
quently in an effort to shape the constitutional jurisprudence of the young Republic.
Far from viewing this as an encroachment on its own jurisdiction, the Constitutional
Court actively encouraged the practice. Overwhelmed by a groaning docket, the Court
hoped to process referrals more efficiently by enlisting the help of the referring courts. In
1953, Hermann Höpker-Aschoff issued a circular asking the other federal courts to take an
advisory stand on each constitutional question they referred. The scheme ran smoothly for
a time, to the mutual gratification of all involved. By mid-decade, however, advisory opin-
ions had become an instrument of high-court power play. Hermann Weinkauff proved the
most aggressive player.
Weinkauff was a great champion of the postwar natural law ‘Renaissance’,175 and his
chambers’ condemnation of G 131 was rooted in the natural law notion that a state’s civil
service lives independent of the rise and fall of particular governments. Civil servants
served the immortal state, not its transitory rulers. The civil service, in other words, sur-
vives regime change. The events of 8 May 1945 were no exception to this universal rule.
In result and in method, the Constitutional Court’s review of G 131 was very different.176
Whereas the Court of Justice had grandly invoked the natural law rights of civil servants,
the Constitutional Court ruthlessly examined their Nazi-era conduct. The Court of Justice
sounded in metaphysics, the Constitutional Court in history.
In a judgment dated 17 December 1953, the First Senate responded to the more than 2,000
constitutional complaints filed against the 131 Law in the two years since its passage.177 It
was, to date, the Court’s longest judgment. But its essence appeared in a single headnote: ‘All
civil service commissions were terminated on 8 May 1945’.178 Nazi-era civil servants, the
Court held, forfeited their positions when the Third Reich collapsed. What G 131 now
granted, the former civil servants received by parliamentary grace, not by natural right.
As striking as this stark conclusion was the argumentation that produced it. With the mer-
ciless assiduity of a revisionist historian, the First Senate’s judgment undermined the myth
of an apolitical administration.179 In painstaking detail the Court chronicled the transfer of
civil servants’ allegiance from the German state to the person of Adolf Hitler.180 Through
that transfer, the Court concluded, German officialdom degenerated into a ‘power apparatus

175  See Daniel Herbe, Hermann Weinkauff (1894–1981). Der erste Prӓsident des Bundesgerichtshofs (Mohr

Siebeck 2008) 121–49. This was not a scholarly diversion for the president of the Court of Justice but the keystone
of his jurisprudence. At the opening ceremony for the new court on 8 October 1950, Weinkauff expounded a
vision for the ship he was to steer. ‘It would be wonderful’, Weinkauff rhapsodized, ‘though also a difficult chal-
lenge for the Federal Court of Justice, to return to the metaphysical foundations of the law’. He called on his
colleagues to exercise an ‘unshakable faith in the metaphysical substance and the divine essence that animate
law. For law derives its strength in the last instance from divine ordainment’. In ibid 124–25. In the years that fol-
lowed, Weinkauff produced a stream of essays with titles like, ‘I Believe’ and ‘Protestant Natural Law’. He entitled
his retirement retrospective of the work of his court, ‘Natural Law Thought in the Jurisprudence of the Federal
Court of Justice’. See Hermann Weinkauff, ‘Das Naturrecht in der Rechtsprechung des Bundesgerichtshofes’
(1960) 13 NJW 1689.
176  The Constitutional Court had already engaged in a tacit doctrinal joust with the Court of Justice, twice

rejecting partial challenges to G 131 and later denying the ongoing force of rights enshrined in the Weimar con-
stitution, a point on which the FCJ had partly rested its repudiation of G 131. See 1 BVerfGE 167 (1952); 2 BVerfGE
105 (1953); 2 BVerfGE 237 (1953). For a discussion of the relationship between the Federal Constitutional Court
and the Federal Court of Justice, see Hans Joachim Faller, ‘Bundesverfassungsgericht und Bundesgerichtshof’
(1990) 115 Archiv des ӧffentlichen Rechts 185.
177  3 BVerfGE 58 (1953). 178 ibid 58.
179  The comparison of the Court to an historian is also found in Maximilian Steinbeis and others, Die

Deutschen und das Grundgesetz (Pantheon 2009) 90.

180  3 BVerfGE 58 (n 177) 98–102.
32 Consolidation, 1951–1959

in the service of the NSDAP’.181 This fact transformed the nature of the civil service—with
unhappy legal consequences for the civil servants themselves. Their commissions were no
longer coterminous with the life of the German state, but with that of its temporary ruler.
Their official posts perished with the Führer in the Berlin bunker—or with the tendering of
unconditional surrender eight days later. Civil servants had no right, under natural or posi-
tive law, to return to their posts or recover lost pay. What they received under G 131 they owed
entirely to the Bundestag’s largesse.
The judgment produced a decidedly mixed response from the West German press
lords—approval from the Frankfurter Hefte and Süddeutsche Zeitung; outrage from the
Frankfurter Allgemeine Zeitung and Die Zeit; silence from Der Spiegel.182 Within the legal
academy and the civil service itself, the decision provoked almost unbounded fury. Within
a year more than eighty articles appeared in legal journals criticizing the decision at varying
pitches of vehement wrath.183 Only a couple deigned to defend it.184 Especially rankling for
traditionalists was the First Senate’s heretical reliance on historical and sociological sources
to reach its conclusion. More nettlesome still, many of the primary historical sources
on which the judgment relied were works of public law scholarship—in many cases the
Nazi-era writings of the judgment’s critics and their colleagues. The First Senate’s judgment
documented the transformation of the Nazi-era civil service by showing how law profes-
sors articulated that transformation in theory and how judges implemented it in practice.185
What’s more, the Court pointedly declined to exclude the academy from its assessment that
the Third Reich civil service had been ‘permeated by the spirit of National Socialism’.186
In consequence of the penetration of the Führer principle in the universities, and of National
Socialist ideology in scholarship, the university ceased to be a true corporation. Increasingly,
it morphed from a forum of research for its own sake into an institute of State education in
which teaching and research were predominantly determined by the political aims of National
Socialism…. For these reasons, after the collapse the universities, as well as the civil service,
had to be rebuilt from the ground up.187

To law professors who had maintained their university chairs from the 1930s through the
1950s, this passage tasted of wormwood. Among the angriest of academic observers, how-
ever, was one who had not returned to the university after the War.
In its plentiful citations to the public law scholarship of the Nazi era, the Civil Servants
judgment referred to several jurists by name. The most prominent name of all, attached to the
most provocative citation, was that of Carl Schmitt. In its description of the ‘judicial’ func-
tion filled by the Führer in Nazi state theory, the Court wrote: ‘Actions that he took as political
Führer could be classed as ‘supreme justice’ (so for the murders of 30 June 1934: Carl Schmitt,
DJZ 1934, 947)’.188 Schmitt erupted when he read this, fuming in private correspondence
that ‘the author of the judgment seized the occasion to abuse me by name and to falsify in his
own sense [my] essay, bold and brave under the circumstances, “The Führer Preserves the
Law”, which sought to save the last remnant of legal justice’. Schmitt also saw in the judg-
ment another, implicit form of personal attack. ‘I am’, he wrote, ‘as every educated jurist in

181 ibid 86.
182  See ‘Das Beamtenverhältnis am 8. Mai 1945 erloschen’ FAZ (18 December 1953) 1; ‘Eine soziale Tat’ FAZ

(18 December 1953) 1; ‘Bedeutsame Entscheidung in Karlsruhe’ Süddeutsche Zeitung (18 December 1953) 1;
‘Verfassungsgericht schreibt Geschichte’ Süddeutsche Zeitung (19/20 December 1953)  3; Richard Tüngel,
‘Weihnachten der Beamten’ Die Zeit (24 December 1953) 3.
183  Wesel (n 109) 146–47.
184  See, e.g., Hans Peters, ‘Der Streit um die 131er-Entscheidungen des Bundesverfassungsgerichts’ (1954)

Juristenzeitung 589.
185  See 3 BVerfGE 58 (n 177) 90–93, 101–15. 186 ibid 96. 187 ibid 142. 188 ibid 86.
 Judicial Supremacy and the Politics of the Past 33

Germany knows, the originator of the doctrine of the institutional guarantee of the career
civil service’. Schmitt read the judgment as a sustained assault on that doctrine—and on its
originator. ‘I now understand’, Schmitt concluded, ‘the anxiety that must assail Adenauer
as he contemplates this sovereign tribunal, its decisionistic omnipotence, its lavishly dis-
pensed head notes and obiter dicta’. Schmitt, a towering theorist of sovereignty, bemoaned
what he saw as the transfer of sovereignty to a new judicial elite: ‘A furrowed brow from this
elite suffices. Against it there is no protection’. He added: ‘Elite is here, of course, a value-free
sociological concept, the definition of which—departing from Pareto—I should like to sug-
gest: Elites are those whose sociology no one dares to write’.189
Schmitt’s anger was of a particularly stygian temperature, but he was hardly alone.
The Association of German Public Law Professors made the Civil Servants judgment the
subject of its 1954 meeting in Tübingen.190 One by one the participants rose to denounce
the decision and decry the Court’s overreaching. Only one participant spoke in the judg-
ment’s defence: Justice Ernst Friesenhahn, of the Court’s non-participating Second Senate.
Friesenhahn told his academic colleagues that he worried about the propriety of his inter-
vening in the discussion, but that he felt a certain duty to do so. Friesenhahn admitted that,
upon his first reading of the judgment, he was as surprised by the First Senate’s reasoning as
anyone, and that he originally rejected that reasoning fiercely.191 But the scope, content, and
form of many criticisms of the judgment gradually prodded Friesenhahn to a more sympa-
thetic view. Friesenhahn was prepared now to defend the judgment, but he realized that he
was sounding a voice in wilderness. He was speaking, he admitted, ‘as the representative of
a hopeless minority’.192

B.╇Battle of the courts
The majority windmill against which Friesenhahn tilted his lonely lance included Hermann
Weinkauff and the Federal Court of Justice. Weinkauff’s earlier opinions questioning or
denying G 131’s constitutionality fuelled the severity of the Civil Service judgment. On 20
May 1954, five months after the Civil Servants judgment, Weinkauff’s First Civil Senate
issued a referral opinion that affirmed the continuance of both the German Reich and the
legal relations of its officials after 8 May 1945.193 Weinkauff was a redoubtable propagandist
for the historical honour and theoretical ideal of an apolitical civil service and an independ-
ent judiciary. As late as 1968 Weinkauff published a defence brief for the Nazi-era judici-
ary, blaming the period’s systematic miscarriage of justice on blind judicial positivism. The
judges of the Third Reich era had been guilty, perhaps, of unreflective service to the state;
but they had not been the willing instruments of National Socialist despotism.194
Weinkauff now inscribed that ideal, applied to the whole of the Third Reich civil service,
in the jurisprudence of the Federal Court of Justice. In its May 1954 referral decision, the
FCJ’s Grand Senate for Civil Matters challenged the Constitutional Court’s Civil Servants
judgment on two fronts. First, Weinkauff and his fellows denied that the Constitutional
Court’s grounds for decision—as opposed to the judgment itself—were binding on the
other federal courts.195 The Constitutional Court’s earlier insistence to the contrary196 was

189╇Carl Schmitt to Giselher Wirsing (14 January 1954) BAK N 1529/44 (Nachlass Werner Weber).
190╇The proceedings were published in 13 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer
(1955).
191╇ibid 162. 192╇ibid 163. 193╇ 13 BGHZ 265 (1954).
194╇See Hermann Weinkauff, Die deutsche Justiz und der Nationalsozialismus:  ein Überblick (Deutsche

Verlags-Anstalt 1968).
195╇ 13 BGHZ 265 (n 193) 271–77. 196╇ See 1 BVerfGE 14, 36 (1951).
34 Consolidation, 1951–1959

itself mere obiter dicta.197 Second, the FCJ rejected the Constitutional Court’s conclusions
about the status of civil servants after 8 May 1945.
Germany’s unconditional surrender, the Grand Senate noted, was military, not politi-
cal; it was tendered by the army, not the government.198 This being so, it couldn’t pos-
sibly affect the legal standing of civil servants who had nothing to do with the armed
forces.199 What’s more, although some miscreant civil servants had, out of opportun-
ism or sheer iniquity, become willing instruments of Nazi crimes, such complicity could
shake the legal standing only of individual villains, not of the civil service as a whole.200
The Constitutional Court’s contrary conclusion was at odds with the rule of law principle,
which forbade collective judgments.201 In any case, the Constitutional Court’s belief that
the civil service as a whole had been corrupted was not a product of legal analysis, but
was rather ‘an historical value judgment’—a kind of retrospective moralizing ‘burdened
by a plethora of uncertainties’.202 The historical record was too meagre and mottled to
support so drastic an outcome as the total abolition of ties between the state and its civil
servants.203
Actually, the FCJ was convinced that the historical record ran the other way. Against the
Constitutional Court’s indictment of the Nazi-era civil service, the Grand Senate invoked
the comforting picture of an apolitical bureaucracy whose officers had overwhelmingly
resisted the pressures of Nazi lawlessness and fulfilled their duties to the German state.204
Initially, most civil servants viewed their vow of loyalty to Hitler simply as a promise of
submission to the state’s highest authority. Then, as the criminal aims and brutal methods
of the new regime became chillingly apparent, the vast majority of civil servants endured
their ‘coerced bond’ to the Führer ‘only unwillingly, under sharp internal rejection and
under sharp terror’.205 Civil servants were themselves victims of Nazi terrorism; the
Constitutional Court needn’t add insult to injury by pronouncing gratuitous ‘historical
value judgments’.
It was a pugilistic opinion with a polemical edge. The matter, as everyone knew, was per-
sonal. All of the judges on the First Civil Senate had themselves been civil servants during
the Nazi era, some of them judges on the notorious Leipzig Reichsgericht.206 By contrast,
only three of the twelve justices of the Constitutional Court’s First Senate had been Nazi-era
officials; five had lost their positions in 1933, one left of his own accord, and three had other
legal jobs. The Court of Justice spoke with unusual energy because its own historical reputa-
tion was at stake. President Weinkauff and his colleagues chafed under the Constitutional
Court’s assertion of a dual monopoly over constitutional jurisdiction and moral legitimacy.
The Constitutional Court’s response was slow in coming and, at first, only indirect. In
a judgment dated 30 November 1955, the Court ruled laconically that ‘[a]‌dvisory opinions
from a referring court upon referral are inadmissible’.207 The textual basis of this holding
was the FCCA’s silence about referral opinions, which meant, the Court reasoned, that they
were not allowed. As a policy matter, moreover, the standing of the nation’s highest courts
would suffer if parties could set divergent opinions at war with one another. Both of these
bases were contestable, but the holding’s mere existence was astonishing. The case at hand
involved neither an advisory opinion nor a referring court. What’s more, as noted earlier,

197  13 BGHZ 265 (n 193) 273. 198 ibid 292. 199 ibid 295. 200 ibid 297.

201 ibid 298. 202 ibid 299. 203 ibid. 204 ibid. 205 ibid.
206  On the nazi-era activities of the judges on the Federal Court of Justice, see Klaus-Detlev Godau-Schüttke,

‘Entnazifizierung und Wiederaufbau der Justiz am Beispiel des Bundesgerichtshofs’ in Eva Schumann (ed),
Kontinuitӓten und Zӓsuren. Rechtswissenschaft und Justiz im ‘Dritten Reich’ und in der Nachkriegszeit (Wallstein
2008) 189.
207  4 BVerfGE 358, 367 (1955).
 Judicial Supremacy and the Politics of the Past 35

the Court’s prior practice had welcomed and even solicited referral opinions. Faced with
the FCJ’s intimations of defiance, however, the justices apparently thought it politic to ter-
minate the practice.
Unsurprisingly, the other federal courts were much provoked. With Weinkauff leading
the way, the presidents of the Federal Court of Justice, the Federal Labour Court, the Federal
Court of Finance, the Federal Social Court, and the Federal Administrative Court issued
a collective statement dismissing as nugatory the Constitutional Court’s ban on advisory
referrals. The Federal Constitutional Court did not sit at the summit of the legal order, the
paper insisted. It too was a court, and no more than a court. It was the legitimate duty of all
federal courts to ensure the constitutionality of the country’s laws.208
The Constitutional Court’s response was unrushed but unbending. In separate judg-
ments issued 19 February 1957, the First Senate reaffirmed the fundamentals of the
Civil Servants judgment and answered, coolly and methodically, the arguments of its
assailants. The first judgment was substantive, the second procedural. The substantive
judgment involved a constitutional complaint from a former member of the Gestapo
who had been denied readmission into the police force. Gestapo functionaries, as noted,
were the only group excluded from the reparations and reentry provisions of G 131. The
complainant challenged this exclusion as a violation of Article 3 GG’s general equality
provisions.
The First Senate’s judgment was simple: the Court stood by its 1953 decision and rejected
the complainant’s appeal. But it was also very long—at ninety pages, one of the early
Court’s longest. It was a systematic response to the accumulated criticisms of the previous
thirty-eight months. The judgment’s tone was anything but conciliatory. The Court con-
ceded nothing; at times, it went on the offencive.
At the outset the Court dismissed many criticisms of the Civil Servants judgment as noth-
ing more than ‘politically accented attacks on or even suspicions of the Court’. Self-evidently,
these attacks merited no reply.209 Serious legal criticisms of the judgment the Senate rebut-
ted with fire and steel. The Court called critics by name (Carl Schmitt was again cited as a
‘National Socialist author’),210 and in some instances answered critics by citing their own
earlier writings. Early in the opinion, for example, the Court quoted Herbert Krüger’s 1954
complaint that the Court ‘has understood the civil service under National Socialism in a
“purely personal” way, has considered the bond to the Führer, but not the bond to the Reich’.
By so doing, the Court ‘impermissibly identified Party and State, equating party member-
ship and civil service commission and thereby misunderstanding both political reality and
public law relations.’211 Later in the opinion, the Court juxtaposed this view with Krüger’s
1941 argument, put forth in a work tellingly entitled Reich, Volksordnung, Lebensraum
(‘Empire, People’s Order, Living Space’—Nazi buzzwords all), that ‘even persons active in
the public administration are not merely a hierarchy of office holders, an “apparatus”, but
are to be envisioned as a community of Führer and followers’, not ‘operative in and for itself,
but rather through the yoking together of a group of people under a Führer in the service of
an objective task’.212
Ernst Forsthoff had his former self quoted against him even more sharply. In 1945,
Forsthoff had been removed from his Heidelberg professorship by occupation authorities,
but had returned to teaching in 1950 and resumed a tenured chair in 1952.213 He was a

See Manred Baldus, ‘Frühe Machtkämpfe’ in Das Lüth-Urteil (n 13) 245.

208 
209 
6 BVerfGE 132, 137 (1957). 210 ibid 173. 211 ibid 137. 212  ibid 162–63.
213  On Forsthoff, see Florian Meinel, Der Jurist in der industriellen Gesellschaft. Ernst Forsthoff und seine Zeit

(Oldenbourg 2011).
36 Consolidation, 1951–1959

friend and disciple of Carl Schmitt and was, along with Schmitt, Krüger, Theodor Maunz,
and Karl Larenz, among the foremost jurists who lent legal legitimacy to the Third Reich.
One student of Schmitt’s postwar influence called Forsthoff ‘undoubtedly the most influ-
ential and important disciple of Carl Schmitt’ in the early Federal Republic.214 Forsthoff
fulminated against the Civil Servants decision, lambasting the Court for failing to realize
that during the Nazi era ‘state and party were not a unity and that upon this fact depended
the measure of freedom … the individual then enjoyed’. The First Senate’s 1957 Gestapo
judgment quoted this passage, but contrasted it on the same page with what Forsthoff had
written in his 1934 article, ‘The Total State’:
State and National Socialist movement … have formed an indissoluble unity, of which the
action of the Führer against the seditious leaders of the SA furnishes a particularly striking
example…. [T]‌he unity of State and Party [was] practically realized before it was formally
proclaimed in the law of 1 December 1933.215

Strong medicine this. But the First Senate was even more unflinching in its response
to criticisms that the Civil Servants judgment had employed an historical rather than a
legal methodology. Particularly barbed was the Senate’s retort to Weinkauff’s critique of the
Civil Servants judgment as an ‘historical value judgment’. If the Constitutional Court was
guilty of playing historian, Weinkauff’s court was guilty of playing politics. The Grand Civil
Senate’s own assessment of the Nazi-era civil service—that ‘the overwhelming portion of
German civil servants, abusive, unlawful pressure notwithstanding, … continued to feel
themselves bound in the first place to the State and its legitimate functions’216 —was ‘not a
judicial finding of fact, but a political hypothesis’.217 If one had to choose, the Court implied,
historical value judgments were better than political slogans.
In the phrase ‘judicial finding of fact’ the First Senate lodged the essence of its apologia.
In the Civil Servants judgment, the justices had not been playing historian, they had been
sitting in judgment—finding facts and passing sentence. They had put the German State on
trial, and found it rotten to the core. The Gestapo judgment was a kind of retrial, conducted
with meticulous resolve and unmistakable anger. If anything, the Gestapo judgment was
more ‘historical’ than Civil Servants. In the earlier case, the Court had relied largely on
evidence from Nazi-era state theory and its judicial application. Now the justices turned to
the Nazi-era actions of civil service agencies across the German state—highlighting, as they
hadn’t before, the persecution of Jews.218
The judgment began with a pointed preterition. The justices professed that they would not
mention the Final Solution (mentioning it), and that they would give ‘only a small extract of
the arbitrary measures against Jews and foreign ethnic groups’.219 They then documented a
pattern of systematic persecution across administrative agencies of every imaginable kind.
The judgment stressed the ubiquity of state oppression by employing a smaller font for its
lengthy enumeration of examples.220 Then, in a striking rhetorical climax, the Court sum-
marized the spread of the cancer:
If therefore the judge …
If the State prosecutor …
If the judicial authorities …
If the registrar …

214  Dirk van Laak, Gespräche in der Sicherheit des Schweigens: Carl Schmitt in der politischen Geistesgeschichte

der frühen Bundesrepublik (Akademie 1993) 240.

215  6 BVerfGE 132 (n 209) 175. 216  13 BGHZ 265 (n 193) 299. 217  6 BVerfGE 132 (n 209) 179.
218  ibid 185–97. 219 ibid 185. 220  ibid 185–92.
 Judicial Supremacy and the Politics of the Past 37

In each instance the Court listed multiple acts of anti-Semitic persecution carried out
by the authority named. The list went on for three pages. It included agencies responsible
for tax collection, municipal affairs, property appraisal, youth matters, public welfare,
labour, commercial inspection, finance, food, tobacco, clothing, school inspection, work-
place inspection, transportation, health, medicine, traffic, nutrition, and tolls. Individual
officials might well have performed isolated acts of decency. Some, perhaps, sought to
mitigate the application of unjust decrees. But there could be no individual immunity
against the poison of a system whose venom ran so thick and full through roots and
trunk and branches. ‘Individuals’, the justices wrote, ‘cannot be judged by the more or
less coincidental field of action’ to which they were assigned. ‘They must be judged, rather,
on the legal basis of their membership in an Institution so marked by the imprint of
National Socialism. For the entire public administration, at its core, [was] implicated
through a political perversion’.221 By affiliating themselves with a particular state institu-
tion, Nazi-era civil servants had forfeited all claims surviving the regime to which the
institution as a whole had subordinated itself.
In a separate judgment issued the same day, the Court responded to the jurisdictional
portions of the Grand Civil Senate’s May 1954 submission decision.222 Of the merits of the
decision and its polemical subtext the Constitutional Court said nothing. That decision was
inadmissible, the Court ruled, for the simple and sufficient reason that the Court of Justice
had no jurisdiction over constitutional questions. The Constitutional Court affirmed its
monopoly on constitutional interpretation simply by presupposing it. Of the circular signed
by the federal court presidents, the First Senate took no notice at all.
Criticism of the Gestapo judgment, by comparison with the scorched-earth assault on
the Civil Servants decision, was muted. By February 1957 most of the Nazi-era officials who
had been roused to wrathful sermons by the Civil Servants judgment had been reintegrated
into the West German bureaucracy. As a practical matter, there was little to be gained by
prolonging the controversy. As an affair of honour, there was much to be lost. Legal scholars
were little tempted to have their Third Reich writings immortalized in the published deci-
sions of the Constitutional Court. The broader public had largely lost interest.
The Gestapo judgment remains a remarkable document. Taken together, the Civil Servants
and Gestapo judgments present a precocious exercise in Vergangenheitsbewältigung, or
overcoming the past. The decisions are unique among official papers of the early Adenauer
era, both for their forthright repudiation of the Nazi past and for their frank acknowledge-
ment that civil servants, high and petty, were complicit in Nazi crimes. A rare note of con-
temporary praise for the Civil Servants judgment extolled its ‘rejection of the veiling of a
disagreeable past’.223 Still more expressive was the assessment of a twenty-four-old graduate
student, Rheinhold Kreile, who in the pages of the Left-leaning Frankfurter Hefte hailed the
judgment as a ‘Magna Carta of self-reflection’, a ripping away of the general ‘veil of forget-
fulness’.224 Kreile rejoiced that, at a time when the public sphere resounded with talk of ‘the
German miracle and the German rise’, the Court had reintroduced ‘the theme of German
decline’. Kreile’s conclusion was stark: ‘What, at bottom, the Constitutional Court held is
this: The civil servant of National Socialist Germany was the civil servant of Adolf Hitler;
the implication is self-yielding: the German people were the people of Adolf Hitler’.225 It was
a candour to be found nowhere else in the public life of the early Federal Republic.

221 ibid 197. 222  6 BVerfGE 222 (1957).

223  Fritz
Heegner, ‘Die Entscheidungen des Bundesverfassungsgerichts und des Bundesgerichtshofs zum
Gesetz 131’ (1954) 7 NJW 898, 903.
224  Reinhold Kreile, ‘Eine deutsche Magna Charta der Selbstbesinnung’ (1954) 9 Frankfurter Hefte 83, 85.
225 ibid 91.
38 Consolidation, 1951–1959

Most praise of the judgments, however, would be posthumous. Only in later decades,
as a new generation of Germans began to resent the silence of its parents, and as reckon-
ing with the Nazi past entered the mainstream of public and political discourse, would
the Civil Service and Gestapo judgments emerge as foundational monuments of judicial
memory.226 Their more immediate impact was the Court’s emergence, over the muttered
maledictions of other federal courts, as the supreme tribunal of the West German judiciary
and the authoritative interpreter of the West German constitution. The judgments’ longer
legacy was to establish the Court as a democratic voice overtly defining the Federal Republic
in opposition to its tyrannical forebear. It was a major contribution to the democratization
of the Second German Republic.

IV.╇ Militant Democracy and Its Discontents

Denouncing the National Socialist state and exposing its official enablers was a brave but
straightforward endeavour. Defining the contours of its successor proved more compli-
cated. This was especially so with respect to those constitutional provisions through which
the framers of the Basic Law sought to secure the Bonn Republic against the fate of the
Weimar Republic—those provisions designed to make of the Federal Republic a militant
democracy.
In their conception of democracy, as in so much else, the framers of the Basic Law were
haunted by the memory of Weimar. The founders of the Federal Republic sought to shield
the new state against internal threat. Article 18 of the Basic Law decreed that those who
abused fundamental rights to fight against the free democratic basic order would forfeit
those rights. Article 21 declared that political parties who fought against the free demo-
cratic order were unconstitutional and should be banned. In both cases, the Constitutional
Court would serve as the arbiter of suppression.

A.╇Banning the Socialist Reich Party

Almost as soon as it opened its doors, the Court was asked to enforce these muscular provi-
sions. In November 1951, the Adenauer government petitioned the Court to ban both the
Socialist Reich Party (SRP) and the German Communist Party (KPD). The government
pitched its double petition as a simultaneous show of steel against extremism of Right and
Left. In the case of the SRP, the government wished both to eliminate a genuine domestic
threat and to reassure an apprehensive international audience. Nationalists and Right-wing
radicals had combined to win nearly 6 per cent of the votes in the first Bundestag elec-
tions in 1949. More recently, the neo-Nazi SRP had fared alarmingly well in the 1951 state
elections, making substantial gains everywhere and winning 11 per cent of the votes in
Lower Saxony. The Adenauer government was determined to stop the ascendant party in
its tracks. The government worried, however, that unilateral action against the SRP would
alienate supporters on the Right and endanger the ruling coalition. ‘We cannot be accused

226╇ For explorations of judicial Vergangenheitsbewältigung, on the Constitutional Court and elsewere, see

Alexander Blankenagel, ‘Verfassungsgerichtliche Vergangenheitsbewältigung’ (1991) 13 Zeitschrift für neuere

Rechtsgeschichte 80; Bernhard Schlink, ‘Die Bewältigung von Vergangenheit durch Recht’ in Bernhard Schlink,
Vergangenheitsschuld und gegenwӓrtiges Recht (Suhrkamp 2002) 89; Jörg Menzel, ‘Vergangenheitsbewältigung
in der frühen Judikatur des Bundesverfassungsgerichts:  Beamten- und Gestapo-Urteile in Das Lüth-Urteil
(n 13). On the Nazi past as a looming presence in the Court’s jurisprudence, see Ulrich Löffler, Instrumentalisierte
Vergangenheit?:  Die nationalsozialistische Vergangenheit als Argumentationsfigur in der Rechtsprechung des
Bundesverfassungsgerichts (Peter Lang 2004).
 Militant Democracy and Its Discontents 39

of one-sidedly doing something against the SRP’, warned Robert Lehr, a member of the
cabinet, in a May 1951 letter to Adenauer.227 In a cabinet meeting a week later, Eberhard
Wildermuth, the housing minister, asked whether a balance couldn’t be sought by calling
for a ban of the KPD as well.228 This logic ultimately prevailed. The government filed its
petition against the SRP on 19 November 1951; its petition against the KPD three days later.
Both bans were slow in coming. ‘We need a law against the Constitutional Court’,
groaned Otto Lenz to his diary in May 1952, ‘for dealing with things so dilatorily’.229 He
groaned too soon. For the Court’s decision in the SRP case, the government would have to
wait five months more; in the KPD case, more than fifty.
The Court banned the SRP in a judgment dated 23 October 1952.230 Consistent with the
language of Article 21 of the Basic Law, the crucial question in the case was whether the SRP
threatened the Federal Republic’s free democratic basic order. The First Senate seized the
occasion to define ‘free democratic basic order’ more concretely.231 That order, the Court
proclaimed, was marked by government free from caprice or coercion and ‘rooted in the
rule of law, upon the principle of popular self-determination according to the will of the
present majority’.232 It must preserve ‘freedom and equality’ and honour, as foundational
principles, ‘respect for the fundamental rights enshrined in the Basic Law, above all the
rights of life and the free development of the personality; popular sovereignty; separation
of powers; the responsibility of the government; the lawfulness of administration; the inde-
pendence of the courts; and the plurality and equality of political parties with a right to
constitutional development and the exercise of political opposition’.233
Against this standard the Senate measured the avowed aims of the SRP and found them
wanting. This part of the analysis was straightforward. The SRP made no secret of its
desire to establish a one-party state animated by the Führer principle.234 The party may not
have embraced all the goals of Hitler’s National Socialists, but in its racist and dictatorial
impulses, the SRP had obviously taken the Nazis as their model.235 An assault on the free
democratic basic order was the party’s raison d’être. The SRP was the prototype of a party
proscribed by Article 21.
More problematic than the ban itself—which was technically moot, since the party had
already dissolved itself—were the legal consequences flowing from it. What was to become
of the two dozen SRP members currently sitting in the Bundestag? Or of the dozens more
sitting in state parliaments?
Whether representatives of a banned party should lose their seats in Parliament had, in
fact, been considered by the Bundestag committee that drafted the FCCA. Because Article
38 GG stipulated that members of Parliament represented the entire people and were
answerable to their consciences alone for the discharge of their duties, the committee con-
cluded that the MPs of a condemned party could keep their seats. The FCCA itself was silent
on the matter, but the committee’s rapporteur, the future justice minister, Fritz Neumayer,
explained to the Bundestag in January 1951 that the proscription of a party did not abolish
the posts of its representatives in Parliament.236

227 Bundesminster des Inneren to Konrad Adenauer (1 May 1951) BAK B 106/15886.

228 Ursula Hüllbusch (ed), Die Kabinettsprotokolle der Bundesregierung, vol 4 (Harald Boldt 1988) 356.
229  Klaus Gotto (ed), Im Zentrum der Macht: Das Tagebuch von Staatssekretär Lenz (Droste 1989) 287.
230  2 BVerfGE 1 (1952).
231  On the Court’s jurisprudence dealing with this concept, see Christoph Gusy, ‘Die “freiheitliche demok-

ratische Grundordnung” in der Rechtsprechung des Bundesverfassungsgerichts’ (1980) 105 Archiv des ӧffentlichen
Rechts 279.
232  2 BVerfGE 1 (n 230) 12–13. 233 ibid 13. 234 ibid 46. 235 ibid 44–47.
236  Verhandlungen des Deutschen Bundestages, vol 6 (18 January 1951) 4230.
40 Consolidation, 1951–1959

The Constitutional Court, however, did not feel bound by this conclusion. Members of
Parliament, the First Senate observed, had a duty of dual representation. They represented
both the people who elected them and the party that sponsored them. In the case of a party
ban, this placed Article 21 in tension with Article 38. But because Article 21 protected the
constitutional order’s fundamental principles of freedom and democracy, the Court ruled
that it took precedence, in case of conflict, over Article 38. Parliamentary seats filled by
SRP members must therefore be vacated without possibility of replacement. This included
members of the various state parliaments as well as of the Bundestag. In the Lower Saxony
state Parliament alone, sixteen delegates were ejected—including some who had previously
left the SRP. An entire Lower Saxon voting district was left unrepresented. But the justices
were untroubled by this outcome. Ejecting SRP delegates violated no one’s rights, the Court
reasoned, because voting for an unconstitutional party was itself an unconstitutional act.
No citizen had a right to offend the constitution.
The press quickly perceived that this judgment involved more than a judicial anathema
pronounced over the grave of a moribund party. An article in Die Zeit called the judgment
‘a legal and political act of supreme importance’, one that marked the birth of ‘a new brand
of democracy’, a democracy capable both of honouring the rule of law and of warding off
internal threats.237 Moreover, the article observed, the judgment did more than interpret
existing law. By drawing the consequences of its own conclusions the Court had given its
judgment the force of law—a clear instance of judicial lawmaking—a power that German
jurisprudence had long been loath to acknowledge.
A lead article in Der Spiegel, by contrast, censured the dissolution of SRP mandates with
considerable fire. Reporting in detail the deliberations of the Bundestag legal committee,
the article observed that the members of this committee—the legal elites of the Federal
Republic—must now ruefully acknowledge that the tribunal they created now regarded their
considered opinions as non-binding.238 The article concluded by quoting—approvingly but
wistfully—the earlier assessment of the committee’s rapporteur:
The decisions of a court of public law represent genuine judicial decisions, in which the con-
tent of the Basic Law is not invented, but rather in which the content of what has already
been expressed as the will of the legislature is ascertained. It is therefore not the duty of this
supreme court, in its decisions, to make political determinations, substitute its own work for
that of the legislature, or venture any other grasp for the stars.

The Court had now done all these things—and surely not for the last time.239

B.╇Banning the German Communist Party

Meanwhile the government’s petition against the KPD was still pending. It would continue
to pend for four long years. Certainly there was an element of political caution in the delay.
The Court was reluctant to intervene in such a charged political controversy. Perhaps the
justices hoped that, as had happened in the European Defence affair, its deliberation would
be overtaken by events—that the matter would become moot before the Court could reach
its merits.
The Court had reason to think this might happen. While the Court deliberated, the
KPD’s electoral fortunes slumped from bad to abysmal. The party’s return sank from 5.7
per cent in the 1949 Bundestag elections to 2.2 per cent in 1953. All signs portended further

237╇ ‘Die Folgen des SRP-Verbots’ Die Zeit (30 October 1952).

238╇ ‘Griff in die Sterne’ Der Spiegel (5 November 1952). 239╇ibid.
 Militant Democracy and Its Discontents 41

decline. One argument against banning the party was that a party plummeting toward elec-
toral extinction couldn’t possibly threaten the constitutional order. This was the position
of the SPD, which contended that a ban would merely mask the KPD’s electoral weakness
and hamstring reunification negotiations.240 Some within the governing coalition shared
this view. Ernst Lemmer, a Christian Democrat, warned against employing ‘the heaviest
judicial artillery against a flock of wind-tossed political sparrows’.241 Others, even within
Adenauer’s cabinet, worried that a ban would merely send the party underground, making
it harder to track and gracing it with the allure of martyrdom and clandestinity.242
After many postponements, oral arguments were scheduled for 23 November 1954. Just
before they began, the Court asked Adenauer to confirm that the government wished to
proceed with its petition.243 Since the government had neither withdrawn its petition nor
given any indication that it wished to do so—indeed, it was obviously preparing for oral
argument—the Court’s message could only be read as a request for the government to drop
the case. To the justices’ dismay, the government pressed on. Nearly a decade later, Justice
Karl Heck spoke of the anguish to body and soul that the case inflicted on the judges.244
Oral argument began with considerable fanfare.245 For many, it felt like a show trial.
There were moments of high drama and moments of low farce. The KPD lawyers—an
army of eight, headed by an imposing East German law professor, Karl Kaul246 —sounded
an early note of truculence that sustained their argumentation through fifty-one days of
oral argument scattered across the next eight months. Kaul and company denounced the
entire proceeding as a ‘medieval inquisition and a witch-hunt’, 247 a resurgence of ‘the same
anti-communism … with which Hitler was able, for a time, to deceive mankind’.248 This
invocation of Hitler and the KPD ban of 1933—a staple of KPD polemics—drew a sharp
rebuke from Josef Wintrich, the chief justice. But the KPD lawyers were unperturbed.
The government’s chief counsel, Ritter von Lex, had no aversion to loaded rhetoric either.
Accused of imbibing Nazism’s spirit, von Lex injudiciously echoed one of its favourite meta-
phors. The KPD, he warned, was ‘a dangerous source of infection for the body of our people,
one that sends poisonous substances into the bloodstream of the state and social organism
of the Federal Republic’.249 Von Lex, who as a counsellor in the Nazi-era interior ministry
had helped organize the 1936 Berlin Olympics, was an object of special execration in the
KPD press and of a hate mail campaign among the party faithful.250 Late in the trial, Karl
Kaul referred to von Lex’s Nazi-era activities before railing that ‘the KPD considers it an
honour to be defamed and insulted here … by Mr. State Secretary Ritter von Lex’.251

240  See Patrick Major, The Death of the KPD: Communism and Anti-Communism in West Germany, 1945–1956

(Oxford University Press 1997) 285–86.

241  ‘Die Klage Zurückziehen’FAZ (9 June 1953); see also Major (n 240) 286.
242  Comments of Labour Minister Anton Storch. See Hüllbusch (n 228) 692, 698.
243  Gerd Pfeiffer and Hans-Georg Strickert (eds), KPD Prozess, vol 1 (CF Müller 1955) 100.
244  See the report in ‘Feierstunde im Bundesverfassungsgericht’ Badische Neueste Nachrichten (18 February

1965) 2.
245  For the minutes of the oral arguments, see Pfeiffer and Strickert (n 243) 82–723.
246  An internal memo from the government’s press agency gave lively portraits of the KPD attorneys: ‘Kröger

(Carl Schmitt student): polite, obliging, fantastically superficial …; Kaul: uninhibited SED demagogue, aggres-
sive and in almost every sentence slanderous … Böhmer: upright Rhinelander, who in a tone of consummate
innocence pronounces the most incredible and captious things; Huetsch: objective, cool, aloof, ostensibly only
there to rescue the endangered Rechtsstaat’. Hans Küffner, ‘Internal Memo: Presse- und Informationsamt der
Bundesregierung’ (10 December 1954) BAK B 145/3392.
247  Pfeiffer and Strickert (n 243) 87; see also Major (n 240) 289.
248  Pfeiffer and Strickert (n 243) 171; see also Major (n 240) 290.
249  Pfeiffer and Strickert (n 243) 116.
250  For the hundreds of articles collected by the Federal Republic’s interior ministry, see BAK B 106 I/90.
251  Pfeiffer and Strickert (n 243) 305.
42 Consolidation, 1951–1959

Von Lex and his co-counsel, the Hannoverian attorney Achim von Winterfeld, didn’t
always impress government sympathizers either. When Fritz Rische, a KPD lawyer, point-
edly omitted the aristocratic ‘von’ from the government lawyers’ names, von Winterfeld
objected strenuously. Justice Franz Wessel reproved Rische, asking how the latter would
like being addressed as ‘Herr Sche’. The syllable ‘von’, Wessel lectured, was as much a part
of von Winterfeld’s name as was the syllable ‘Ri’ of Rische’s own.252 The episode was one of
several exercises in foppery and conceit that led Hans Küffner of the press ministry to sigh
that the government lawyers’ ‘incompetence on all questions of public law … is surpassed
only by their vanity’.253 The lawyers maddeningly refused, Küffner complained, to cooper-
ate with the press, then sulkily regarded all adverse reportage—of which there was a great
deal—as ‘grievous strokes of fate’.254 The press ministry undertook damage control by send-
ing a pamphlet with the government’s position to law professors around the globe.255
Despite repeated efforts by KPD counsel to shift the discussion to contemporary politi-
cal realities, the trial centred on the classics of communist ideology. The justices’ questions
focused on the four pillars of the communist canon—Marx, Engels, Lenin, and Stalin—and
their reception as the official ‘doctrine’ of the KPD. The KPD lawyers knew that this empha-
sis on ideology over activity would redound to the party’s disadvantage—perhaps its
destruction. They responded by touting the party’s commitment to German reunification
and by stressing a recent softening on the necessity of violent revolution.
The justices were unreceptive. In the end, fearing the worst, KPD counsel hoped at least
to make the most of the international stage—hoped, it seems, to rattle the courthouse walls
with the thunder of their defiance. On the last day of oral argument, Karl Kaul rose and
roared:
The KPD, the party of the German working class, outlived Frederick William IV and his com-
munist prosecutions and Bismarck and his socialist law; she saw Hitler and Himmler sink
into the abyss; and as the flag-bearer of German unity and the freedom of the people, she will
outlive those who seek today to suppress her and rob her of her rights. Those who marched
under the same mantras in 1933 to destroy the KPD brought Germany to the brink of perdi-
tion. The KPD, however, endures and will continue to endure, because in her is embodied the
will to life of the German nation.256

The trial ended on 14 July 1955. The Court deliberated for more than a year before announc-
ing its judgment. During this time the Adenauer government resumed diplomatic relations
with Moscow and negotiated for the release of German prisoners of war. Banning the KPD
might have hampered these negotiations, leading some to speculate that the Court’s further
delay was dictated by political caution rather than jurisprudential uncertainty.257 Twice dur-
ing the Court’s deliberations the KPD asked the Court to reconsider the case’s admissibility
in light of Stalin’s death and programmatic changes in the party after Khrushchev’s ‘secret
speech’ of 25 February 1956. The government retorted that this supposed softening was a
temporary, tactical ruse—that ‘[t]‌he KPD is and remains the classical party of revolutionary
violence’.258 The Court declined to disrupt the proceedings.
Still, no decision was forthcoming. With the POW negotiations long since concluded,
the government grew impatient. Some cabinet ministers seemed genuinely alarmed. At

252 See ‘Memorandum Diabolicum’ Der Spiegel (13 July 1955). 253  See Küffner (n 246).
254 ibid.
255  See ‘Verfahren gegen die KPD vor dem Bundesverfassungsgericht—die Rechtsgrundlagen, Teil 2:  Die

Schluβplädoyers der Bundesregierung’, BAK B 145/1860.

256  Pfeiffer and Strickert (n 243) 303. 257  See Major (n 240) 291.
258  Pfeiffer and Strickert (n 243) 475.
 Militant Democracy and Its Discontents 43

the close of a cabinet meeting on 25 January 1956, the interior minister, Gerhard Schröder,
warned of ‘dangerous attempts at bolshevist infiltration, which after the resumption
of relations with Moscow would only intensify’.259 Schröder added that after five long
years he hoped the KPD case would soon come to a close. Four months later, Schröder’s
ministry took the extraordinary step of urging the Court directly to quicken its pace.
In a 25 May memo the interior minister pled with the Court to decide the case swiftly
and thus avoid a ‘fatal weakening of the position of our state in the East-West confron-
tation so decisive for our whole people’.260 More combatively, in its 21 July 1956 amend-
ments to the FCCA, the government transferred jurisdiction over party bans, effective
1 September, from the First Senate to the Second.
The Court took the hint. On 17 August, two weeks before its de facto deadline, the First
Senate announced its judgment.
The published opinion proved that the justices had not been idle.261 At 308 pages it remains
the longest decision in the history of the Court, though its outcome was announced in
two six-word sentences: ‘The German Communist Party is unconstitutional’,262 and: ‘The
German Communist Party is dissolved’.263
The Senate went on, at enormous length, to canvass the writings of Marx, Engels, Lenin,
and Stalin, producing in the process what one historian has called (with mild extrava-
gance) the best short summary of Marxism–Leninism ever written in German—‘clearly
written, concise, and exhaustive’.264 At every turn, the Court concluded that the fulfill-
ment of the Marxian programme would doom a democratic constitution. This conclu-
sion became the major premise of the Court’s syllogistic holding. Communist ideology
called for the overthrow of a free democratic order; the KPD embraced communist ideol-
ogy; therefore the KPD sought the overthrow of the free democratic basic order and must
be banned. Quotidian political considerations, the Senate insisted, played no role in this
analysis. The Court must ban a party whose aims were at enmity with the constitution,
even if by any mortal measure the party had no hope of fulfilling those aims.265 Before
announcing the judgment, Chief Justice Wintrich observed that ‘[t]‌he Court must reach its
decision from a purely legal perspective; considerations of political expediency are there-
fore inadmissible’.266
The political consideration urged on the Court most forcefully, however, was also a con-
stitutional consideration. The Basic Law’s preamble committed the Federal Republic to pur-
sue German reunification, and the KPD lawyers—not to mention the case’s critics in the
West German press—played the reunification card relentlessly throughout the proceeding.
In its judgment, the First Senate noted the apparent tension between the preamble’s com-
mand to pursue reunification and Article 21’s command to ban unconstitutional parties,
but the justices could ‘not ascertain that a ban of the KPD would pose a legal or insurmount-
able factual obstacle’ on the ‘road to reunification’.267 In any case, the KPD’s reunification
argument was spurious. The party pursued reunification with the aim of placing united
Germany under authoritarian rule. Its vision of reunification sprang from the very desire to
abolish the free democratic order that made the party illegal.268
It was a remarkable judgment. Most striking of all was the Court’s commentary on the
fundamental orientation of the Federal Republic. At a crucial juncture in the judgment,

259  Hüllbusch (n 228) 139.

260  Bundesministerium des Inneren to Bundesverfassungsgericht (25 May 1956) BAK B 106/56600.
261  5 BVerfGE 85 (1956). 262 ibid 86. 263 ibid 87. 264  Wesel (n 109) 92.
265  5 BVerfGE 85 (n 261) 143. 266  Pfeiffer and Strickert (n 243) 483.
267  5 BVerfGE 85 (n 261) 133. 268  ibid 303, 334, 342.
44 Consolidation, 1951–1959

the First Senate noted that the rise of ‘totalitarian’ parties in the twentieth century had
rendered nineteenth-century liberalism’s posture of toleration and neutrality toward all
political parties untenable.269 By holding fast to that obsolescent posture, the Weimar con-
stitution disarmed the first German Republic and left it prey to the taloned harpies of ‘the
most aggressive of these “totalitarian” parties’.270 Against this ‘constitutional–historical’
backdrop, the Basic Law sought ‘to restore a free democratic order immediately after the
destruction of a totalitarian state system’.271 This restoration required protecting the free
democratic order against its enemies. In this respect, Article 21(2) of the Basic Law posed no
internal contradiction. It was, rather, the ‘expression of a conscious political–constitutional
will to resolve a boundary problem of a free democratic state order’—it was the ‘credo of a
… “militant democracy”’ (streitbare Demokratie).272
The Federal Republic, then, was a militant democracy, and its militancy was not merely
anti-fascist, but anti-totalitarian. The Court thus constitutionalized the conceptual cat-
egories of the Cold War, a move that led the Court to equate KPD agitation against the
‘monopoly–capitalist class rule’ of ‘the Adenauer Regime’ with an assault on the free demo-
cratic order itself.273
The concept of ‘militant democracy’ gained prominence in the late 1930s when the
German emigree-lawyer Karl Loewenstein made it the subject of a pair of articles in The
American Political Science Review.274 Loewenstein famously exhorted the world’s democra-
cies to fight fire with fire—to employ undemocratic means, if necessary, to keep democracy
alive.275 It was an awkward notion for the Court to apply. As guardians of the constitution,
the Court must identify the constitution’s enemies. As guardians of the free democratic
order, the Court must proclaim exceptions to that order.
The business of identifying enemies and announcing exceptions had an obvious, uncom-
fortable echo. In the two most famous sentences he ever wrote, Carl Schmitt defined sov-
ereignty as the power to proclaim a state of exception,276 and exalted, as the essence of ‘the
political’, the distinction between friend and foe.277 In 1931, Schmitt warned that consti-
tutional justice would lead, not to the judicialization of politics but to the politicization of
jurisprudence.278 In 1954, Schmitt railed against the Constitutional Court’s ‘apocryphal
acts of sovereignty’. Now sovereignty and politics, in a Schmittian sense, were mingled in a
single judgment. Militant democracy was designed to convince a wary world that Bonn was
not Weimar. By 1958, Schmitt himself concluded that it was worse: Bonn was Karlsruhe.279
The immediate outcome of the KPD judgment was that for the second time in less than a
quarter of a century the German Communist Party was outlawed by the German state. In
the aftermath of this judgment, the KPD took the unusual, and unsuccessful, step of appeal-
ing the decision to the European Court of Human Rights. The Strasbourg Court ruled that
a group dedicated to depriving others of fundamental rights could not itself invoke them.280

269 ibid 138. 270 ibid 139. 271 ibid. 272 ibid. 273  ibid 297–98.

274  Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I’ (1937) 31 Am. Pol. Science Rev. 417;
Karl Loewenstein, ‘Militant Democracy and Fundamental Rights II’ (1937) Am. Pol. Science Rev. 638.
275  See Loewenstein, ‘Militant Democracy and Fundamental Rights II’ (n 274) 656 (‘Fire is fought with fire’);

Karl Loewenstein, ‘Legislative Control of Political Extremism in European Democracies II’ (1938) 38 Colum.
L. Rev. 725, 774 (‘Democracy, fighting fire with fire, begins to become militant’).
276  Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (Duncker and Humblot

1934) 9.
277  Carl Schmitt, Der Begriff des Politischen (Universitätsverlag von Robert Noske 1927) 28–29.
278  Carl Schmitt, Der Hüter der Verfassung (JCB Mohr 1931) 22.
279  Carl Schmitt to Armin Mohler (10 June 1958), in Armin Mohler and others (eds), Carl Schmitt—Briefwechsel

mit einem seiner Schüler (Akademie Verlag 1995) 247 fn 294. See also Jan-Werner Müller, A Dangerous Mind: Carl
Schmitt in Postwar European Thought (Yale University Press 2003) 66–68.
280  Reported in (1957) 10 NJW 1349.
 Militant Democracy and Its Discontents 45

In the hour of its death, the KPD could console itself, if at all, only in the sympathy of certain
sectors of the West German public. But while many journalists agreed that the judgment
was unfortunate, not all blamed the justices. Der Spiegel, for instance, criticized not the
First Senate, which issued the judgment, but the federal government, which had ‘forced’ the
Senate’s hand. The government’s intransigence ran counter to the nearly unanimous assess-
ment of legal experts that the proceeding was untimely, coming at precisely the moment
when the Kremlin seemed for the first time in thirty years to be freeing (modestly) the
hands of its satellites.281 (The Hungarian rising, and its subjugation by Soviet tanks, was still
a few months off.) Die Zeit—now in the hands of less conservative editors than at the time of
the SRP judgment282—similarly doubted the government’s wisdom in pressing its petition,
but pinned blame on the Basic Law itself, which charged the democratic order to defend
itself in a democratically dubious manner.283
The Court itself faced sharper criticism from scholars on the marginalized Left of the
legal academy. The most prominent of these, Wolfgang Abendroth, wrote a stinging review.
Abendroth accused the Court of privileging an illusory homogeneity of class interests and of
infusing that homogeneity into its understanding of the free democratic order. In a democ-
racy, Abendroth countered, values must be defined by ‘the people and not the jurists’.284
Although the Basic Law allowed many forms of a free democratic order, the Court had
chosen one and made it everlastingly binding. By giving specific shape to the Basic Law’s
broad generalities, the Court had mistaken its role. Abendroth’s criticism was absorbed and
embraced by his most brilliant student, a young social theorist named Jürgen Habermas
who became a life-long observer and critic of the Federal Constitutional Court.285

C.╇Banning the atomic weapons plebiscite

Habermas was especially appalled two years later when the Court quashed one of the
Federal Republic’s first experiments in direct democracy. The underlying controversy
shook the nation. It was seen, literally, as a matter of national and global life and death. It
arose from the Adenauer government’s decision to equip the federal army, the Bundeswehr,
with atomic missiles.
The Bundeswehr’s early history was marred by chronic shortages of men and mater-
iel. Volunteers came forth by the tens of thousands, but most were disqualified by past
participation in the Wehrmacht, the army of the Third Reich.286 Theodor Blank, the

281╇Jens Daniel, ‘Der Bumerang’ Der Spiegel (22 August 1956).

282╇ SeeMathias von der Heide and Christian Wagner, ‘“Weiter rechts als die CDU”:  Das erste Jahrzehnt
der Zeit’ in Lutz Hachmeister and Friedemann Sierung (eds), Die Herren Journalisten. Die Elite der deutschen
Presse nach 1945 (CH Beck 2002) 165; see also Karl-Heinz Janßen and others (eds), DIE ZEIT. Geschichte
einer Wochenzeitung 1946 bis heute (Siedler Verlag 2006); Axel Schildt, ‘Immer mit der Zeit:  Der Weg der
Wochenzeitung Die Zeit durch die Bonner Republik—eine Skizze’ in Christian Haase and Axel Schildt (eds),
Die Zeit und die Bonner Republik:  Eine meinungsbildende Wochenzeitung zwischen Wiederbewaffnung und
Wiedervereinigung (Walstein 2008) 19.
283╇ Michael Freunl, ‘Keine Hexenjagd: Verbot der KPD, nicht Ausrottung’ Die Zeit (23 August 1956). Five years

earlier Die Zeit had been an aggressive advocate of party bans, warning that delays in staffing the Constitutional
Court could result in the Federal Republic’s demise at the hands of parties it should long since have banned.
284╇Wolfgang Abendroth, ‘Das KPD-Verbotsurteil des Bundesverfassungsgerichts:  Ein Beitrag zum

Problem der richterlichen Interpretation von Rechtsgrundsätzen der Verfassung im demokratischen Staat’
in Antagonistische Gesellschaft und Politische Demokratie: Aufsӓtze zur politischen Soziologie (Luchterhand
1967) 139.
285╇ For a detailed study of Habermas’s engagement with the Court, see the introduction and Â�chapters 1, 2, and

5 of Matthew Specter, Habermas: An Intellectual Biography (Cambridge University Press 2010).

286╇ Of the 152,000 volunteer applicants in 1955, e.g., 128,000 had served in the Wehrmacht. See Conze

(n 7) 290.
46 Consolidation, 1951–1959

defence minister, originally planned to recruit a force of 500,000 within three years of
the Bundeswehr’s founding. But this was quickly exposed as risibly sanguine. Blank’s
faith in traditional forces—and in his capacity to muster them—was criticized sharply by
Adenauer’s ambitious minister for atomic matters, Franz Josef Strauβ, who offered a coun-
terproposal of his own. Plainly seeking Blank’s job, Strauβ called for a German adaptation
of America’s Radford plan (named for Admiral Arthur Radford, chairman of Eisenhower’s
joint chiefs of staff). The plan would reduce traditional manpower and escalate technical
prowess. It envisioned fewer men and more weapons, including ‘the most modern of weap-
ons’, nuclear missiles. In October 1956, Adenauer reshuffled in his cabinet in a major way
for the first time. Blank resigned, and Strauβ replaced him. By early 1957, Adenauer had
embraced Strauβ’s plan.
The West German public, vociferously, had not. Shortly after Adenauer announced his
atomic intentions on 5 April 1957, eighteen leading German atomic scientists and other
prominent intellectuals issued a manifesto urging Adenauer and all future chancellors
explicitly and voluntarily to renounce the possession of any kind of atomic weapons. The
scientists among the signatories vowed never to participate in an atomic weapons pro-
gramme. Luminaries like Albert Schweitzer, Albert Einstein, and Bertrand Russell joined
the opposition from abroad, and the protest movement swept across the West German
social and political spectrum. The SPD and the FPD, the unions and the churches all
joined in a chorus of dissent. Even some national conservatives in the Bundeswehr officer
corps, fearing the reduction of German territory into a nuclear battlefield, were opposed,
though the desire for equal status with France and Britain finally carried the day with the
top brass.
Parties hostile to atomic armament, however, failed to translate popular mobilization on
the atomic question into electoral success. Marching under the mantra ‘No Experiments’,
the CDU/CSU exploited a popular longing for stability and swept, in September 1957, to an
outright Bundestag majority. The FDP joined the SPD in opposition.
But electoral setback hardly stilled the waves of protest. Parliamentary debates in early
1958 on the atomic question were among the stormiest in the Bundestag’s history. Two
of Adenauer’s former ministers turned against him. One was Gustav Heinemann, once
Adenauer’s interior minister and now a Social Democratic member of the Bundestag. The
other was Thomas Dehler, the irascible former justice minister, who accused Adenauer
of having never seriously desired reunification and of having conducted a foreign policy
that systematically militated against it.287 In floor debates, SPD orators bashed the govern-
ment with unblushing Nazi comparisons. In his maiden speech, Helmut Schmidt charged
the government with succumbing to ‘German-national megalomania’. Schmidt skewered
CDU members as the political epigones of those who approved the Enabling Law in 1933.288
Observing from abroad, George Kennan, the American diplomat who coined the concept of
‘containment’, now called for a ‘disengagement’ from Cold War confrontation and the crea-
tion of a neutral, united Germany. Hugh Gaitskell, leader of the Labour Party opposition
in Britain, proposed establishing an independent German confederation. West German
citizens took to the streets.
By April, they marched by the hundreds of thousands. On 25 March 1958, the Bundestag
rejected an SPD bill that would have banned stationing atomic weapons in the Federal
Republic. Thereafter, the opposition parties joined the mass-protest movement, which by

287 See Heinrich August Winkler, Der lange Weg nach Westen, vol 2 (CH Beck 2000) 193.
288 See Hans-Peter Schwarz, Die Ära Adenauer:  Epochenwechsel, 1957–1963 (Deutsche Verlags-Anstalt
1983) 38.
 Militant Democracy and Its Discontents 47

now styled itself the ‘Fight Against Atomic Death’. Opposition leaders also took action at
the state level. In May, SPD governments in the city-states of Bremen and Hamburg, along
with SPD-led municipalities in the state of Hessen,289 passed laws calling for local refer-
enda on the question of atomic armament. The avowed aim was to grant popular protest
an official voice with which to press the federal government to relinquish its atomic ambi-
tions. The opposition states also hoped that a ripple effect would prompt parallel referenda
throughout the Republic. Adenauer found the vision of a mass rising—state by state, city
by city—somewhat less than inspiring. His government denounced the planned plebi-
scites. Invoking exclusive federal jurisdiction over defence and foreign policy, it asked the
Constitutional Court to suppress them.
The Court, with Willi Geiger serving as rapporteur,290 rushed to judgment, hoping to
decide the case before the referenda took place. But before the Second Senate announced
its opinion on 30 July 1958, the matter lost much of its brisance. Earlier in the month, after
casting its campaign as a referendum on the atomic question, the SPD endured a calamitous
defeat in the North-Rhine-Westphalia state elections. After this electoral debacle, the SPD
abandoned the movement, and the movement surrendered the ghost. The Constitutional
Court supplied the coup de grace.
In its published decision, the Second Senate observed that the purpose of the referenda
was neither to gather statistics nor to test public opinion. Their purpose was to exert politi-
cal pressure.291 The Senate acknowledged that ‘[i]‌n modern democracy public opinion
plays a decisive role’,292 but stressed that public opinion and the will of the people must not
be confused with official opinion and the will of the state.293 The traditional distinction
between state and society remained in force. In the societal–political realm, public opinion
was formed and political will shaped without official regulation or restriction. State organs
could intervene in these processes only subject to jurisdictional limitations.294 The Senate
treated the proposed referenda as acts of the states that hosted them. As state acts, they
encroached on the exclusive jurisdiction of federal organs over national defence and foreign
policy.295 Such encroachments were unconstitutional, null and void.296
This, of course, was precisely the position that the federal government had taken in its
briefs, and the government was naturally pleased with the decision. Some members of the
cabinet waxed effusive. Gerhard Schröder, for one, praised the Court for saving the coun-
try from ‘a serious threat to the constitution’.297 Adenauer reacted with a thespian yawn of
complacence. The decision came as no great surprise, the chancellor sniffed. The outcome
had long been predicted by a large consensus among legal experts.298
Opposition leaders vowed to fight on. At all levels of government, SPD stalwarts promised
to honour the Court’s judgment but pledged to continue the campaign against Atomtod.
The Court had resolved only the jurisdictional question of regional plebiscites; the moral
and existential question of atomic armament remained open.299

289 Most prominently Frankfurt am Main, Darmstadt, Kassel, and Offenbach.

290 See Ernst Benda, ‘Ansprache anläβlich der Feierstunde des Bundesverfassungsgerichts am 9. November
1977 zur Verabschiedung von Bundesverfassungsrichter Prof. Dr.  Willi Geiger’ BAK N 1334/299 (Nachlass
Gerhard Leibholz).
291  8 BVerfGE 104, 111–12 (1958). 292 ibid 112. 293 ibid 113. 294  ibid 115–16.
295  ibid 116 (citing Articles 32(2), 32(3), 65a, 73(1), 87a, and 87b GG).
296  ibid 121. On the same day, the Court also invalidated the municipal referenda in Hessen, holding that

the Hessen state government was in violation of the principle of bundesfreundliches Verhalten—literally,
federal-friendly behaviour—by allowing its municipalities to conduct referenda in a question of federal compe-
tence. See 8 BVerfGE 122 (1958).
297  ‘Erfreut und enttäuscht’ Die Welt (31 July 1958) 1. 298 ibid.
299  See ‘SPD will gegen Atomwaffen weiterkämpfen’ FAZ (1 August 1958) 1; Walter Schallies, ‘Karlsruhe ver-

bietet Volksbefragung’ Süddeutsche Zeitung (31 July 1958) 1.

48 Consolidation, 1951–1959

The judgment disappointed and disillusioned those who hoped the Atomtod campaign
would herald the advent of robust popular democracy in the Federal Republic. Among the
most dismayed was Jürgen Habermas. In a 1958 essay on political participation, Habermas
lamented that the Court’s jurisprudence narrowed the possibilities of popular political
engagement. The Basic Law itself, Habermas noted, was ‘guided by distrust of plebiscitary
decisions’.300 But the Court had made matters worse:
[A]‌ccording to the official interpretation of the Basic Law there exists no possibility for the
people to express its will directly in a binding manner with regard to a particular subject.
If one compares this de facto impotence with the personal protection and personal freedom
guaranteed to individuals in an elabourate catalogue of fundamental rights, one cannot
escape the impression that for the citizen of the so-called consumer society the status of a
client is also assigned juristically: he must, in the end, pay the piper…. Endowed with these
rights, and at the same time all but excluded from actual political participation, the People
becomes a welfare object.301

Habermas discerned in this trend ‘a new, welfare-state conception of patrimony’, as

though the constitution itself took as its rallying cry: ‘Everything for the people, but noth-
ing by the people’. 302 After the Court’s Atomic Plebiscite judgment, Habermas sighed,
Bundestag elections remained the ‘[o]‌n ly possibility for [popular] political participation
“at the federal level”’. 303 In light of Habermas’s jaundiced, Schmitt-shaded view of mod-
ern parliamentarism, 304 this was cold comfort indeed.
Habermas’s critique of the Court was institutional as well as case-specific. Earlier in the
essay, Habermas approvingly cited the complaints of August Dresbach, a CDU member of
the Bundestag, regarding the ‘judicial lawmaker of Karlsruhe case law’.305 He also para-
phrased Hermann Brill, a political scientist and former MP, who complained the Court
operated as a ‘partisan … judicial supra-authority of political justice in the fashion of a
secularized patrimonial court’.306 But such criticisms, Habermas added, didn’t reach far
enough. They still ‘measure[d]‌constitution and constitutional reality by the standard of
technical, abstract legal principles’, and so failed to capture the ‘inescapable internal con-
tradictions’ arising ‘from the underlying conflict between a liberal, rule-of-law Norm and
the … content of concrete social life that Norm deprives’.307
Habermas was haunted by these contradictions. As Matthew Specter, a Habermas
biographer, notes, ‘While [Habermas] never went as far as Schmitt in contrasting lib-
eralism and democracy, he clearly saw a tension between the two’.308 That tension was
particularly acute in the Court’s jurisprudence. After the KPD and Atomic Plebiscite
judgments, Specter writes, Habermas viewed ‘the highest court as an antidemocratic and
antisocialist institution’. He bemoaned ‘the Court’s role in effectively negating popular
sovereignty’ and saw in it ‘a paternalistic and repressive force of conservative restora-
tion’.309 This view mellowed over time, but Habermas never fully abandoned his basic
critique that ‘[t]‌he shadow side of Germany’s success in dethroning … statism in favor of
… robust liberal constitutionalism [was] that too much power [was] concentrated within
the Federal Constitutional Court’.310

300  Jürgen Habermas, ‘Zum Begriff der politischen Beteiligung (1958)’ in Kultur und Kritik (Suhrkamp

1973) 49.
301 ibid 49–50. 302 ibid 50. 303 ibid.
304  Earlier in the essay, Habermas explicitly adduced Schmitt’s 1923 tract Der geistesgeschichtliche Zustand des

heutigen Parliamentarismus (The Intellectual-Historical State of Contemporary Parliamentarism). See ibid 28.

305 ibid 38. 306 ibid 38–39. 307 ibid 39. 308 ibid 19. 309  Specter (n 285) 68–69.
310 ibid 20.
 The Quiet Birth of Fundamental Rights 49

V.  The Quiet Birth of Fundamental Rights

Even as Habermas protested that democratic participation was a high price to pay for fun-
damental rights enforcement, the Court was crafting a fundamental rights jurisprudence of
astonishing scope and power. The outcome only ambivalently brightened Habermas’s view
of the Court; it blackened Carl Schmitt’s view beyond redemption. The rise of muscular,
value-laden rights jurisprudence was the most enduring development of the Court’s first
decade. In a series of landmark judgments the Court fashioned a fundamental rights frame-
work whose protection covered every imaginable human activity and whose writ reached
every alcove of the nation’s legal order. Their cumulative effect exalted the position of fun-
damental rights within the constitutional and legal order. It also expanded enormously the
power of the Constitutional Court.
Legal scholars immediately recognized that momentous doctrinal developments were
underway, though few could have predicted their impact or persistence. In contrast, the
landmark fundamental rights decisions were often opaque to the general public. In retro-
spect, however, many would view the Court’s muscular rights jurisprudence as a precondi-
tion and catalyst for the democratization of West German law, politics, and society. The fact
that citizens could vindicate their constitutional rights by lodging individual complaints
in Karlsruhe—a proceeding codified by the constitution itself in 1969—gave ordinary
West Germans access to the processes of governance that was unavailable in any other way.
Ironically, the very Court that Habermas accused of closing channels of democratic partici-
pation came to be viewed as a forum for democratic participation. Individual complaints
inundated the Court’s inbox—several thousand annually, and the numbers grew with time.
Success rates were slender, but the individual complaint became an early and enduring
source of the Court’s popularity.311

A. The Elfes judgment and the general right

It is sometimes said that constitutional history is made by eccentrics. Wilhelm Elfes, epony-
mous plaintiff in the Court’s first earth-shaking fundamental rights case, was certainly an
eccentric.312 A founding member of the CDU, Elfes became the party’s scourge. Elected
from the CDU list to the North-Rhine-Westphalia state Parliament in 1947, Elfes emerged
by the early 1950s as an implacable antagonist of Adenauer’s foreign policy. Elfes denounced
the chancellor’s drive toward rearmament and Western integration and deplored his retreat
from reunification. Elfes voiced his opposition long and loud, at home and abroad, at every
opportunity. A tireless publicist and orator, Elfes became an unwitting ally of the Left; he
even inspired proposals within the KPD to install Elfes at the head of a transitional govern-
ment after the ‘fall’ of the Adenauer regime. After being ousted from the CDU, Elfes made
a failed bid for the Bundestag in 1961 as candidate and co-founder of the ‘German Peace
Union’. His campaign was partly funded by the German Democratic Republic.
Elfes’s extraterritorial tirades against government foreign policy cost him the privilege
of travelling abroad. In 1953, his petition for a passport extension was denied. The denying
agency gave no reasons for the rejection. A state administrative court sustained the denial

311  See Christoph Mӧllers, ‘Legalitӓt, Legitimitӓt und Legitimation des Bundesverfassungsgerichts’ in Matthias

Jestaedt and others, Das Entgrenzte Gericht. Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht
(Suhrkamp 2011) 281, 298.
312  On Elfes, see Albert Eβer, Wilhelm Elfes, 1884—1969: Arbeiterführer und Politiker (Matthias-Grünewald

1990); Günter Wirth, Wilhelm Elfes (Union-Verlag 1984).

50 Consolidation, 1951–1959

and supplied reasons of its own. In December 1952, the court explained, Elfes had gone to
Vienna for a ‘Congress of the Peoples for Peace’. While there, he presented an ‘All-German
Declaration’ in which he denounced the Federal Republic’s foreign policy in the name of all
Germans, East and West. Elfes made similarly grandiloquent gestures in Paris, Budapest,
and East Berlin. These actions, the court held, ‘imperiled the external security … of the
federal government’, an offence justifying passport denial under the passport law. When
the Federal Administrative Court sustained this judgment, Elfes appealed to Karlsruhe.
Nowhere did the text of the Basic Law explicitly guarantee the right to foreign travel,
but Elfes argued that such a right was implied in Article 11’s guarantee of the freedom of
movement and in Article 2’s protection of the free development of one’s personality.313
The Parliamentary Council had debated inconclusively how far Article 2’s general guar-
antee would reach in practice. One camp argued that it included only activities germane
to the ‘innermost essence’ of an individual’s ‘spiritual–intellectual–moral personality’
(geistig-sittliche Person). The other camp argued that it shielded a much broader panoply of
human behaviour.
In its Elfes judgment of 16 January 1957, 314 the Constitutional Court embraced the latter
view, endowing Article 2 with a sweeping scope of protection that would make it the textual
anchor of countless future complaints—some in matters of tremendous importance, others
on questions of consummate banality.315
But before expanding Article 2, the justices first limited Article 11, ruling (against pre-
vailing academic opinion) that it did not apply to foreign travel. Within the borders of the
Federal Republic, the Court held, citizens moved about freely by fundamental right; beyond
those borders, they travelled at the pleasure of their government.316 Article 2, by contrast,
protected ‘human freedom of action in the widest possible sense’, not merely in core spheres
of conscience or identity.317 Article 2 secured a ‘general freedom of action’ (allgemeine
Handlungsfreiheit), which individuals could invoke to vindicate freedoms not explicitly
secured in the constitution’s catalogue of fundamental rights.318 This was an extraordinary
extension of protection; its implications for the Court’s future jurisprudence were colossal.
It did not, however, secure Wilhelm Elfes his passport. The passport law’s restrictions on
individual freedom of action were, the justices wrote, constitutionally legitimate. The law
protected the right to foreign travel by requiring the government to give reasons for denying
passports. But it also protected state interests by allowing the government to deny passports
when it gave adequate reasons. Because Elfes was a security threat, the government’s wish
to prevent his rabble-rousing on the foreign lecture circuit was a constitutionally adequate
reason to deny his request for a passport.
The Court’s vast construction of Article 2(1) GG was intensely controversial, not least
because its relevance to Elfes’s case was questionable. The Court could have disposed of
the case simply by limiting Article 11 to domestic travel and finding that foreign travel was
unnecessary to personal development. Instead, it discovered in Article 2 a general freedom
of action, which, together with the fundamental rights explicitly enumerated in the Basic
Law, forged an unbroken shield protecting every imaginable act or omission. To expand
Article 2’s scope, was of course, to expand the Court’s jurisdiction. Within the legal cul-
ture, both expansions were recognized as revolutionary—and rarely in a positive sense. ‘The
judgment is truly sensational’, Ernst Forsthoff inveighed in a letter to Carl Schmitt. ‘The

313  See Article 2(1) GG. 314  6 BVerfGE 32 (1957).

315  On the ‘general personality right’, see HD Jarass, ‘Das allgemeine Persӧnlichkeitsrecht im Grundgesetz’
(1989) 43 NJW 857.
316  6 BVerfGE (n 314) 35. 317 ibid 36. 318 ibid 37.
 The Quiet Birth of Fundamental Rights 51

longer one considers the decision the more mediocre it becomes. Article 2 is thereby killed,
and if one sees in Article 2 the famous general right, we have therewith the total statutory
reservation [Gesetzesvorbehalt]’.319 The ‘statutory reservation’ required that activities pro-
tected by fundamental right be restricted only by statute or regulation authorized by stat-
ute. If all human activity enjoyed the protection of a general fundamental right, Forsthoff
scorned, then all government regulation—no matter how trivial its object—must be author-
ized by formal statute or statutory delegation. To Forsthoff, an administrative lawyer, this
sounded like the end of administrative governance.
Other observers were equally appalled. To Theodor Maunz and Günther Dürig, authors
of a vastly influential commentary on the Basic Law, the judgment was ‘fairly sensational’—
an estimation endorsed by Thomas Dehler.320 Dehler, who as a member of the Parliamentary
Council had helped to frame Article 2, thought the decision had made mincemeat of the
framers’ intentions. He undertook, as a point of honour, to refute the Court’s assertion that
its construction of Article 2 comported with the provision’s framing history.321
Outside the legal culture, the case was unopposed by politicians and almost unnoticed
by the public. Though the judgment claimed for the Court enormous authority to enforce
fundamental rights against the state, it elicited almost no official disapproval. After all,
the authorities won their case. An international nuisance had been silenced. Like other
early landmarks, Elfes has been compared to Marbury v. Madison—a technical victory for
the state, that gave judges enormous authority, in future cases, to restrain the state. In this
respect Elfes was, in the title of a later monograph, ‘more than a judgment’.322

B.╇Gender equality
In addition to extending constitutional protection to unenumerated rights, the Court in
its earliest years also made clear that it would enforce enumerated protections strictly.
Nowhere was this more dramatic than in the case of gender equality. 323 During the Basic
Law’s framing, Elisabeth Selbert, the most prominent of the Parliamentary Council’s four
female delegates, spearheaded a popular movement that successfully inserted a ten-syllable
assurance of gender equality that became Article 3(2) GG: Männer und Frauen sind gleich-
berechtigt (‘Men and women have equal rights’). Taken literally, the provision would apply
dynamite to the family law provisions of the civil code, which entrenched the domestic
dominance of husbands and fathers. On its face, Selbert’s simple sentence would invalidate
scores of code provisions. It was unclear, though, what sort of family law regime would
replace the fallen patriarchal order. As with many thorny issues, the Parliamentary Council
reserved the matter for future parliamentary resolution.
Lest Parliament dither, however, the Basic Law imposed a deadline—or rather a stay of
execution. Article 117(1) GG granted the legislature a transitional period in which to reform
the civil code. After 31 March 1953, however, all code provisions at odds with Article 3(2)
would become null and void.324

319╇Ernst Forsthoff to Carl Schmitt (28 February 1957), in Dorothee Muβgnug (ed), Briefwechsel Ernst

Forsthoff—Carl Schmitt, 1926–1974 (Akademie 2007) 129.

320╇ See Thomas Dehler, ‘Zur Entstehungsgeschichte des Art. 2 Abs. 1 GG’ BAK N 1221/65 (Nachlass Theodor

Heuss).
321╇ibid.
322╇ See Gunther Rojahn, ‘Elfes—Mehr als ein Urteil’ (15 December 2010) (unpublished Ph.D. dissertation,

Freie Universität Berlin).

323╇ But see 6 BVerfGE 389 (1957) (upholding against a gender equality challenge a law that made male sodomy,

but not female homosexuality, a crime).

324╇ See Article 117(1) GG.
52 Consolidation, 1951–1959

Until then, uncertainty reigned and debate raged. Commentators within the largely con-
servative guild of family lawyers contended that Article 3 required little alteration to the
ancien régime. These scholars thought and wrote in illiberal, collectivist terms. If anything,
they defended the preexisting patriarchy with greater vigour after 1949 than before.325 They
saw marriage as a social order enshrined in supra-positive law. Article 3, they insisted, must
be read in light of traditional cultural understandings of marriage and family. It was not
the business of transitional constitutions, conservatives jeered, to effect sweeping social
change.326 Scholars of the natural law renaissance argued that patriarchy was embedded in
the order of creation, that absolute legal equality between husband and wife was ‘heresy’,
and that the leading role of a husband and father at home reflected ‘pre-juridical natural
law’.327
Parliament, meanwhile, consumed with stormy debates on foreign policy, did noth-
ing. The deadline of 31 March 1953 passed without a parliamentary whimper. What then
happened to the civil code’s family law provisions became an instant source of debate
and alarm. Some feared that jurisprudential anarchy had been loosed upon the Federal
Republic. Others fretted that courts would unilaterally annul laws half a century old.
Many courts pointedly refused to do so. Less than three weeks after the 31 March dead-
line, courts in Mannheim and Gieβel contended that, absent implementing legislation,
Article 3 was not valid law and could not be applied.328 On 22 April, the Frankfurt Court
of Appeals went even further, declaring Article 117(1) GG unconstitutional—an offence to
principles of legal certainty and separation of powers—and referring the question to the
Constitutional Court.
The first response from Karlsruhe, however, came from the Court of Justice. The Fifth
Civil Senate rejected the position of the Frankfurt appeals court in a judgment dated 14
July 1953. What the Frankfurt court really questioned, the Fifth Senate wrote, was not the
constitutionality of Article 117 but the direct validity of Article 3. That validity, however,
could not be questioned. Article 1(3) unequivocally decreed the direct validity of all funda-
mental rights provisions, Article 3 included. The equality clause could not be soft-pedalled
or dismissed as hortatory—as a policy guide rather than a binding norm.329 Three months
later the First Civil Senate, under the chairmanship of Hermann Weinkauff, published an
advisory opinion, supporting the Fifth Senate’s stance and dismissing concerns about the
separation of powers. It had long been the work of courts, Weinkauff and his colleagues
held, to plug gaps and resolve conflicts in statutory law. It would not be easy for judges to do
this in the case of Article 3. But it wouldn’t be unconstitutional either.330
In its judgment of 18 December 1953, the Constitutional Court agreed.331 Article 3,
the First Senate held, was directly valid law,332 and courts must apply it to bring offend-
ing provisions of ordinary law into harmony with the constitution.333 The vast majority of
courts had already been doing this, with no evident eruption of legal chaos.334 This was not
a deviation from the separation of powers principle; it was the traditional work of judges.335
If Parliament was unhappy with the arrangement, it could pass the law the constitution
required. To the contention that direct judicial application of Article 3 undermined legal
certainty, the Court conceded that legal certainty was a crucial component of the rule of
law, but added that the constitutional framers had accommodated the risk of uncertainty
by granting Parliament four years in which to amend the civil code. Now that this period

325  See Franzius (n 16) 125. 326  See Steinbeis and others (n 179) 112.
327  ibid (quoting Friedrich Wilhelm Bosch). 328  See Franzius (n 16) 130.
329  10 BGHZ 266, 278 (1953). 330  11 BGHZ (Anhang) 34 (1953). 331  3 BVerfGE 225 (1953).
332 ibid 239. 333 ibid 231. 334 ibid 226. 335 ibid 242.
 The Quiet Birth of Fundamental Rights 53

had passed, legal certainty must yield to the higher imperative of ‘material justice’.336 In this
case, material justice demanded judicial recognition that ‘even in marriage and family, man
and woman have equal rights’.337
In an almost parenthetical aside, however, the Court may have limited with its left hand
what it bestowed with its right. ‘It hardly needs to be noted’, the justices wrote, ‘that in the
field of family law, a special legal regulation with regard to objective biological or functional
(i.e. based on the division of labour) differences according to the nature of the respective life
conditions [of husband and wife] is permissible or even necessary’.338 Four years later the
Court adduced this passage to endorse differential treatment, within the criminal code, of
gay men with respect to lesbians.339 Some lower courts, meanwhile, advanced it to preserve
elements of domestic patriarchy.
The piecemeal judicial elabouration of Article 3(2) endured until Parliament finally leg-
islated on the matter in the summer of 1957. The law was only a partial victory for advocates
of gender equality. It annulled the husband’s right to decide important family matters alone
and abolished the wife’s duty to secure her husband’s permission before working outside the
home. It also repealed the husband’s right to manage his wife’s finances and consume her
wages. But husbands retained the right to have the final word in questions of child rearing
and wives retained the duty to perform household labour. The law appealed explicitly to
Christian and natural-law conceptions of gender relations, and, in preserving a husband’s
right to the last word, it invoked the Constitutional Court’s acknowledgement of ‘func-
tional differences’ between the sexes.
The invocation proved premature. In a July 1959 judgment the First Senate declared the
law constitutionally deficient and annulled its retention of the father’s final say in child
rearing and sole legal representation of the children.340 In defence of the challenged provi-
sions, the federal government argued that Article 3’s guarantee of gender equality must be
construed in light of Article 6’s promise of special state protection to marriage and family.
In the government’s view, protecting marriage meant perpetuating patriarchy. The Court,
led by Erna Scheffler, turned this argument on its head. By including both provisions, the
Constitution presumed the compatibility of gender equality and marital sanctity.341 The
Court read Article 6 by the light of Article 3, not the other way around.342 So construed,
marriage meant nothing if not the union of equals. Article 6 did not preserve patriarchal
marriage; it replaced it.
The Senate was singularly unimpressed by the thesis that, in the case of conflict in a
community of two, one must finally decide. The point lost what force it may have held when
Parliament abolished, without replacement, the husband’s final say in matters of housing
and household finance.343 The likelihood of unity and compromise would be strengthened
by the rejected alternative of family arbitration courts—an alternative the Court seemed
obviously to favour—but weakened by the law’s provision that the husband decide alone.344
Talk of objective differences was beside the point. The Court’s 1953 statement about objec-
tive and functional differences did not justify weakening the wife in her role as mother.345
The objective differences exception applied only where differences were so pronounced as to
render talk of advantage and disadvantage unintelligible.346 That was not the case here. The
1957 law put women at a patent disadvantage.347 For appeals to natural law the Court had

336  ibid 232. The abuse of legal positivism in the Nazi era, the Court wrote, had taught that in some cases ‘the

principle of material justice is more highly to be valued than that of legal certainty’.
337 ibid 242. 338 ibid 242. 339  6 BVerfGE 389 (n 323) 422. 340  10 BVerfGE 59 (1959).
341 ibid 67. 342 ibid 88. 343 ibid 81. 344 ibid 87. 345 ibid 74.
346  ibid 74 (citing 6 BVerfGE 389 [n 323]). 347 ibid 76.
54 Consolidation, 1951–1959

only icy impatience: ‘For the review being conducted here, the Basic Law is the only stand-
ard considered’.348 By that standard, the challenged provisions failed miserably.
The judgment provoked much popular jubilation. ‘The fathers of the Federal Republic
chronicle a dark day’, crowed Die Welt in mock solemnity.349 Other papers abandoned
irony. ‘The last bastion of paternal domination in the family’, hurrahed Die Zeit, ‘is fallen’.
The Court had granted women ‘perfect legal equality’.350 Scattered voices carped that the
Court had legislated from the bench. If so, Parliament swallowed the Court’s decree. For
twenty years the federal legislature let the offending passages stand unaltered, with an
asterisk indicating their invalidation by the Constitutional Court. In the meantime, the
Court’s jurisprudence became the family law of the Federal Republic.

C. ‘An objective system of values’: the Lüth judgment

As the Court deliberated its first Gender Equality judgment in December 1953, Erna
Scheffler, the case’s rapporteur, submitted a draft opinion proposing the concept of the con-
stitution as a hierarchy of values, with some constitutional norms enjoying a higher rank
than others—with the equality principle ranking among the supremest of the supreme.
Hermann Höpker-Aschoff roundly rejected this heretical notion. ‘The thought of distin-
guishing among norms of higher and lower rank within the constitution’, the chief justice
wrote in an internal memo, ‘is absurd. A constitution, according to its very idea, is a unified
conception, based on certain basic decisions, in which each individual provision carries the
same validity and force’.351 Höpker-Aschoff thought Scheffler’s notion sufficiently danger-
ous, and enough of his peers on the First Senate agreed with him, that an explicit refuta-
tion appeared in the published judgment of 18 December 1953: ‘The Basic Law can only be
conceived as a unity. It follows that at the level of the constitution itself, norms of higher and
lower rank—in the sense that they can be measured against one another—are fundamen-
tally unthinkable’.352 The Court bolstered the point by citing the similar conclusion of the
Federal Court of Justice.353 Less than a month after the decision, Höpker-Aschoff was dead.
In the hearts of some justices, the hierarchical heresy lived on.
From time to time a sentence appeared in a published judgment suggesting a view of the
Basic Law as an organic system—an objective order in which some fundamental norms
were more fundamental than others. The KPD judgment spoke of the constitution as a
‘value system’ (Wertsystem).354 So did Elfes.355 Then, in a January 1958 judgment, the Court
unmistakably trumpeted that the Basic Law embodied an objective system of values, cen-
tred in human dignity and the free development of the human personality, and within which
some fundamental rights—the judgment highlighted the freedom of expression—enjoyed
a particularly prominent perch. In the eyes of many observers, this judgment was the most
momentous, not only of the Court’s first decade, but of its entire history.356 Like Elfes, this
landmark takes its name from its petitioner: Erich Lüth.
The Lüth judgment created an enduring framework of constitutional adjudication and
constitutionalized the whole of German law. The legal academy immediately saw the judg-
ment as a watershed, though the full force of its long-term impact could hardly have been

348 ibid 81. 349  Die Welt (30 July 1959).

350  ‘Das Machtwort des Vaters … und die perfekte Gleichberechtigung’ Die Zeit (7 August 1959).
351  Hermann Höpker-Aschoff, ‘Bemerkungen zu dem Urteilsentwurf von Frau Scheffler zu Art 117 GG’

(12 October 1953) BAK N 1129/25 (Nachlass Höpker-Aschoff).

352  3 BVerfGE 225 (n 331) 231–32. 353  See 1 BGHZ 274, 276 (1951).
354  5 BVerfGE 85 (n 261) 138. 355  6 BVerfGE 32 (n 314) 40.
356  See ‘Einführung’, in Das Lüth-Urteil (n 13).
 The Quiet Birth of Fundamental Rights 55

predicted. The German public largely ignored it. The day after the judgment, the Frankfurter
Allgemeine Zeitung carried a brief, technical summary of the opinion on its fourth page, but
said nothing about the case’s enormous implications and ignored its seminal passage.357
The FAZ report emphasized the cultural celebrity of the participants rather than the judg-
ment’s jurisprudential consequences. The Süddeutsche Zeitung didn’t report the decision at
all, nor did leading weeklies such as Die Zeit and Der Spiegel. Die Welt, which followed the
case’s course through the lower courts in the early 1950s, also failed to report its dénoue-
ment. By 1958, the Lüth proceeding had ceased to be a cause célèbre, and Die Welt had other
monumental news to relay—its cover for 16 January 1958 carried a large photograph of the
visiting queen of Sweden. Now seen as the very axis of postwar constitutional history, the
Lüth judgment was a non-event in the contemporary public sphere. This silence is all the
more striking because the underlying controversy had once stirred a popular sensation.
Given the judgment’s subsequent stature, it is tempting to narrate the facts of Lüth in an
epic key. The case’s protagonists give it the feel of a morality drama. On the side of the angels
was Erich Lüth, the case’s hero and namesake. Hamburg press secretary at the time of the
boycott call that won him fame and got him sued, Lüth was the founder of the ‘Peace with
Israel’ movement that helped facilitate West German reparations payments to Jews. On the
other side was Veit Harlan, director of twenty or so Nazi propaganda films, most notori-
ously the venomously anti-Semitic Jud Süss (The Jew Süss). The 1940 film was the greatest
cinematic blockbuster of the Nazi era, seen by some 22 million Third Reich movie goers.
The film’s appeal was not limited to the vulgar masses either. After seeing Jud Süss for the
first time an effusive Carl Schmitt urged Ernst Jünger to view the film posthaste.358 In the
winter of 1940–41, Heinrich Himmler is said to have ordered all SS and Gestapo person-
nel to watch Harlan’s movie. The film’s influence was deemed sufficiently pervasive and
pernicious that Harlan was the only Nazi artist in any field prosecuted for crimes against
humanity after the War.
Harlan was acquitted by a Hamburg jury court in early 1949, but his acquittal was quashed
and remanded by the Supreme Court of Justice for the British occupation zone in Cologne.
The Hamburg court acquitted Harlan a second time a year later, and the public prosecutor
declined a second appeal, which would have gone before the Federal Court of Justice and
its cadre of erstwhile Nazi jurists. Harlan was similarly exonerated in his denazification
proceeding, where he was classified as ‘unburdened’ (unbelastet) by the crimes of the Nazi
regime. The collective official verdict was that Harlan was the unwilling instrument of Josef
Goebbels. Jud Süss was Harlan’s handiwork but not his brainchild; his artistic production
but not his legal responsibility.
Thus acquitted, Harlan was ready for a comeback. Indeed, when public prosecutors
decided not to appeal his acquittal in July 1950, Harlan was already at work on his first
postwar film, a tragic romance called Immortal Beloved (Unsterbliche geliebte), a filmic
recreation of a Theodor Storm novel featuring Harlan’s spouse and starlet, Kristina
Söderbaum.
Erich Lüth reacted fiercely to news of Harlan’s return to the German screen. In a
September 1950 speech to the Hamburg Press Club, Lüth sparked a controversy that
would last nearly a decade and immortalize his name in the annals of the Constitutional
Court. ‘German film having forfeited its moral aspiration during the “Third Reich,”’
Lüth began,

‘Lüth durfte gegen Harlan vorgehen’ FAZ (16 January 1958) 4.

357 

Carl Schmitt to Ernst Jünger (29 September 1940) Ernst Jünger/Carl Schmitt Briefe, 1930–1983 (Klett-Cotta
358 

1999) 105. The further correspondence doesn’t say whether Jünger followed Schmitt’s advice.
56 Consolidation, 1951–1959

one man is certainly the very least suited to restore this reputation: this is the screenwriter and
director of the film Jud Süss! Let us spare ourselves the incalculable damage we would incur in
the eyes of the whole world should he of all people be held forth as a representative of German
film. His acquittal in Hamburg was merely formal. The opinion of the court was a moral con-
demnation. We here urge lenders and theatre owners to take a stand which will not be cheap
but for which we ought to be willing to pay a price: Character. And I wish such character for
German film.359

Reports of a new Harlan film had already provoked scattered opposition; Lüth’s polemic
swelled and serried the ranks. Hans Domnick, the producer of Immortal Beloved, responded
publicly. Insisting that he had employed Harlan as a director in order to restore German
film to its ‘former artistic height’, Domnick challenged Lüth to justify his assault on the
acquitted Harlan.360 Lüth did so in an open letter dated 27 October 1950.
The Hamburg court’s judgment, Lüth wrote, did little to deny the fact that for much of
the Hitler era Harlan had been ‘Nazi Director Number 1’, and that, by means of Jud Süss,
Harlan had been ‘one of the Nazis’ most important exponents of murderous Jew-hatred’.
Some foreign and domestic businessmen might not oppose Harlan’s return to directing,
Lüth conceded.
But Germany’s moral standing in the world must not be ruined again by powerful moneymak-
ers. Harlan’s reemergence would rip open barely scarred wounds and frightfully renew fading
mistrust to the detriment of German reconstruction. For all these reasons, it is not only the
right but the duty of self-respecting Germans to hold themselves ready, in the struggle against
this unworthy representative of German film, to move beyond protest to boycott.361

Having failed to secure Lüth’s retraction the producers sought to secure his silence.362 On
2 November 1950, Domnick Film and its underwriter, Herzog Film, petitioned the Hamburg
district court for a temporary injunction. The civil action thus initiated would culminate
more than seven years later in the Lüth judgment of the Constitutional Court.
The district court granted the producers’ request for a temporary injunction on
18 November 1950.363 On 27 February 1951, the Hanseatic Court of Appeals sustained the
injunction.364 The injunction drew critical commentary in the press and expressions of soli-
darity in the public.365 A campaign was launched to collect funds for Lüth’s legal expenses.
Among Lüth’s public supporters were a handful of prominent SPD politicians, among
them Adolf Arndt.366 On 17 May 1951, a month after the FCCA entered into force, Lüth
announced that, if the Hamburg district court ruled against him in the main proceeding, he
would appeal to the new court in Karlsruhe. In the meantime, Harlan’s new film drew huge
crowds of viewers and protesters. By mid-1951 Immortal Beloved had sparked demonstra-
tions in most major cities of the Federal Republic, with the wave coalescing in what became
increasingly a student movement.367
On 22 November 1951, the district court ruled against Lüth on the merits.368 The court’s
result and reasoning were unaltered from its injunction judgment the year before. The
injunction was made permanent, and Lüth was ordered to pay damages. The judgment

359  7 BVerfGE 198, 199 (1958). 360 ibid 200.

361  ibid. Lüth’s letter was published in the Welt am Sonntag of 29 October 1950 and the Neue Zeitung of
31 October 1950.
362  The history of the Lüth proceeding before Lüth’s appeal to the Constitutional Court is recorded in Arne

Riedlinger, ‘Vom Boykottaufruf zur Verfassungsbeschwerde:  Erich Lüth und die Kontroverse um Harlans
Nachkriegsfilme, 1950–58’ in Das Lüth-Urteil (n 13) 147.
363  ibid 457–66. 364  ibid 467–80. 365  Riedlinger (n 362) 160–61. 366 ibid 161.
367 ibid 166. 368  Das Lüth Urteil (n 13) 481–87.
 The Quiet Birth of Fundamental Rights 57

provoked criticism in the press, some of it accompanied by calls for new legislation. 369 These
calls were eventually answered. But the new legislation came from Karlsruhe, not Bonn.
In the aftermath of his defeat in Hamburg, Lüth visited the office of Adolf Arndt to seek
representation in a constitutional challenge. Arndt, exhausted and overworked, ­buffeted by
several overlapping legal, political, and foreign policy tempests, could only sigh. Gesturing
to the mountains of documents around him, Arndt boomed in his Berliner baritone
that though Lüth’s cause was surely just, he simply could not undertake it. But perhaps,
Arndt added, his assistant might be able to help.370 Arndt’s assistant—the first scholarly
assistant in the history of the Bundestag—was a twenty-eight-year-old named Wilhelm
Hennis, a newly-minted Ph.D. and later a leading political scientist and public intellec-
tual.371 Hennis took the job and drafted a brief. On 18 December 1951, Arndt’s office asked
the three-month-old Constitutional Court, in Lüth’s behalf, to quash the judgment of the
Hamburg district court.
Six years passed before the First Senate did so. For much of that time, the Senate was
­hopelessly overburdened—embroiled, too, in a series of smouldering political rows. In a May
1952 letter to Adenauer’s state secretary Otto Lenz, Höpker-Aschoff mentioned Lüth as a
pending case of political significance that the Court couldn’t reach because of its constrained
resources.372 In a 1956 essay, Justice Willi Geiger despaired over the Court’s unworkable
­division of labour. ‘The current situation of the Federal Constitutional Court is grim’, Geiger
wrote. At the moment, he grieved, the Court ‘can no longer fulfill its function’.373
It certainly couldn’t, or at least didn’t, respond to Erich Lüth’s petition. Whatever
the reasons for delay, the First Senate released its judgment in the Lüth controversy at a
time—January 1958—when the Constitutional Court had effectively consolidated its pos-
ition at the summit of the German judiciary and when its status as a coordinate consti-
tutional organ was universally recognized. It was a time, too, when the Federal Republic
itself had found broad popular acceptance, when the ‘Economic Miracle’ was at its crest,
and Adenauer at the zenith of his power. It was a time when the Court, in a case posing lit-
tle threat of popular backlash, could deliver a decision whose outcome was impressive and
whose grounds were revolutionary.
Lüth’s complaint argued that the district court judgment violated his fundamental right,
guaranteed by Article 5(1) GG, to voice his views freely. This argument presupposed that
private-law judicial decisions could violate fundamental rights, which in turn presupposed
that fundamental rights constrained private law norms.
Both propositions were controversial. At one pole of the debate were those clinging to a
classical conception of fundamental rights as—only—defensive rights shielding individ-
ual freedom against state intrusion. At the other extreme were those, led by Hans-Carl
Nipperdey, president of the Federal Labour Court, who argued that fundamental rights
norms applied directly to all legal relationships, public and private, between citizens well
as between the individual and the state.374 In its Lüth judgment, the First Senate distanced

369 See Riedlinger (n 362) 168–69.

370 See Wilhelm Hennis, Lüth—und anderes, in Das Lüth-Urteil (n 13) 187, 191.
371  Hennis did not stay with the case till its conclusion. In 1953 he left Arndt’s office to become Carlo Schmid’s

assistant at the Institute for Political Science at the University of Frankfurt. On Hennis, see Stephan Schlak,
Wilhelm Hennis: Szenen einer Ideengeschichte der Bundesrepublik (CH Beck 2008).
372  Hermann Höpker-Aschoff to Otto Lenz (16 May 1952), BAK B 136/4436.
373 Willi Geiger, ‘Zur Reform des Bundesverfassungsgesetzes’ in Theodor Maunz (ed), Vom Bonner

Grundgesetz zur gesamtdeutschen Verfassung (Isar 1956) 211.

374  Nipperdey had applied this view in a labour Court judgment, asserting its consistency with two 1957 judg-

ments of the Constitutional Court. See the judgment of the Bundesarbeitsgericht (Federal Labour Court) in
(1957) 10 NJW 1688, 1689 (citing 6 BVerfGE 55 (1957) and 6 BVerfGE 84 (1957)). On Nipperdey’s relationship to
58 Consolidation, 1951–1959

itself from the latter position and decisively rejected the former.375 True, the justices wrote,
fundamental rights remained principally defencive rights against the state. But in the con-
stitutional order of the Basic Law, they were something more as well—something the jus-
tices captured in the most famous passage they or their successors ever wrote:
In its fundamental rights section, the Basic Law—which is not a value-neutral order—has also
erected an objective order of values and given expression thereby to a fundamental strength-
ening of the validity and force of fundamental rights. This value system—centred on the dig-
nity and free development of the human personality within the social community—must be
regarded as the fundamental constitutional decision for all areas of law. It governs and ani-
mates legislature, executive, and judiciary. Thus, self-evidently, it also influences civil law. No
civil law provision may contradict it; each must be construed in its spirit.376

Courts that failed sufficiently to consider the effect of fundamental rights on private law
norms not only committed an objective legal error; they were guilty of wielding state power
to the detriment of an individual right.377 Those harmed by such a faulty judgment could
challenge it before the Constitutional Court.378
Fundamental rights, then, were objective values, not merely subjective shields. All pri-
vate law norms were subject to the ‘radiating effect’379 (Ausstrahlungswirkung) of those val-
ues. Some rights, moreover, radiated with particular brilliancy. Prominent among these
was the freedom of speech:
The fundamental right to the free expression of opinion is, as the most unmediated expres-
sion of the human personality, one of the foremost of all fundamental rights. …. For a free
democratic state order it is absolutely constitutive [schlechthin konstituierend], for it enables
the constant intellectual exchange, the conflict of opinions that are its very lifeblood. It is, in a
certain sense, the foundation of all freedom, ‘the matrix, the indispensable condition of nearly
every other form of freedom’ (Cardozo). 380

The primacy of free expression within the free democratic order required that the guardians
of that order vigilantly oppose ‘every relativization’ of that right ‘through ordinary law’. Free
expression of opinion could be limited only by other protected interests of equal or greater
constitutional value. In balancing competing values the Court would ask whether, consid-
ering all the circumstances of a given case, ‘protected interests … of higher rank would be
injured by the expression of opinion’.381 This would rarely be so when the contested expres-
sions contributed to public discourse and the shaping of public opinion. Almost invariably,
in such cases, the private interests protected by civil law must yield to the fundamental
rights secured by constitutional law.382 The Hamburg district court had paid insufficient
attention—indeed, no attention at all—to the influence of Article 5 GG on Section 826 of
the civil code. Lüth’s right to express himself freely, and the public’s right to hear what he
had to say, trumped the financial interests of the producers and the reputational interests
of Harlan himself. What’s more, contrary to the findings of the lower courts, Lüth’s boy-
cott appeal did not offend public morals. If anything, in its concern for Germany’s moral
standing in the wake of Nazi misrule, it promoted them.383 The Hamburg district court had
misread the moral facts of the case and misread the role Article 5(1) GG should have played
in its analysis. Its judgment, therefore, was revoked.

the Lüth judgment, see Thorsten Hollstein, ‘Um der Freiheit willen—die Konzeption der Grundrechte bei Hans
Carl Nipperdey’ in Das Lüth-Urteil (n 13) 249.
375  7 BVerfGE 198 (n 359) 204. 376 ibid 205. 377  ibid 206–07. 378 ibid 207.
379 ibid 207. 380  ibid 208. The Court quoted Cardozo in English. 381 ibid 210.
382  ibid 212–30. 383  ibid 221–30.
 The Quiet Birth of Fundamental Rights 59

The practical impact of the Lüth judgment was slight. Immortal Beloved had already
made its run as one of the great blockbusters of the early 1950s—more than 8 million view-
ers by one count—and Harlan’s comeback was complete. He released six films while the case
was pending in Karlsruhe and three more during the year of the Lüth judgment. The public
that once sympathized with Lüth’s fight largely ignored his vindication. This was so even in
some legal circles. Three years after the decision, a Canadian comparative lawyer charac-
terized Lüth as presenting interesting questions of abstract jurisprudence in an ‘otherwise
rather minor’ decision.384
Most public lawyers and state theorists, however, recognized Lüth for the earthquake that
it was. In effect, the Court had taken sides in the civil war of the West German public law
academy, whose two camps formed round the figures of Rudolf Smend and Carl Schmitt.385
With its conception of the constitution as an order of values that required balance and
reconciliation on a case-by-case basis, the Lüth judgment breathed the spirit of Smend’s
doctrine of integration (Integrationslehre), a view of the state as an agent of political inte-
gration and societal harmony.386 Smend himself had characterized the rights charter of
the Weimar constitution as a ‘system of values’.387 But the Court incorporated Smend with
the modernizing gloss Smend’s students of the 1950s had given to their master’s precepts
of the 1920s. In its Weimar formulation, Smend’s integration doctrine—partly informed
by Smend’s early admiration for Italian fascism—was harmonistic, statist, and in the last
analysis anti-pluralist. Smend’s postwar pupils—many of whom thought and wrote with
an American accent and a bent for political science—recast the concept of integration in a
liberal, Western, pluralist mode. Out of that pluralism they sought unity—the unity of the
state and the unbroken internal unity of the constitution.388 Smendians saw the realization
of such unity in Lüth’s proclamation of an objective, holistic system of constitutional values.
On the whole, Smend’s students greeted the Lüth judgment with jubilation. So did other
leading lights of the legal academy. Günter Dürig, whose theory of the indirect operation of
fundamental rights on civil law norms the Court had broadly embraced,389 wrote a raptur-
ous review in the Neue Juristische Wochenschrift, a leading legal weekly.390
The Schmitt school responded with somber jeremiads. Ernst Forsthoff announced
the end of constitutional law as German public lawyers had known it, a revolutionary
transmutation of their tradition. 391 The most pointed critique came from Schmitt him-
self. In Schmitt’s view, the Court had compounded its usurpation of jurisdictional sov-
ereignty with an assertion of moral tyranny—‘The Tyranny of Values’, Schmitt called
it, borrowing a phrase from Nicolai Hartmann. 392 It was in the aftermath of Lüth that

384  Edward McWhinney, Constitutionalism in Germany and the Federal Constitutional Court (AW Sythoff

1962) 46.
385  On the formation and development of the two schools, see Frieder Günther, Denken vom Staat her: Die

bundesdeutsche Staatsrechtslehre zwischen Dezision und Integration (Oldenbourg 2004).

386  See Rudolf Smend, Verfassung und Verfassungsrecht (Duncker and Humblot 1928).
387  Rudolf Smend, ‘Verfassung und Verfassungsrecht’ in Staatsrechtliche Abhandlungen und andere Aufsätze,

3d edn (Duncker and Humblot 1994) 264.

388  For a sharp summary, see Frieder Günther, ‘Ein Jahrzehnt der Rückbesinnung. Die bundesdeutsche

Staatsrechtslehre zwischen Dezision und Integration in den fünfziger Jahren’ in Das Lüth-Urteil (n 13) 301–14.
On the Smend school, see ibid 307–12.
389  See Günther Dürig, ‘Grundrechte und Zivilrechtsprechung’ in Vom Bonner Grundgesetz zur gesamt-

deutschen Verfassung (n 373) 157.

390  Günter Dürig, ‘Zum “Lüth-Urteil” des Bundesverfassungsgerichts vom 15.1.1958’ (1958) 12 Die Öffentliche

Verwaltung 194.
391  Ernst Forsthoff, ‘Die Umbildung des Verfassungsgesetzes’ in Hans Barion (ed), Festschrift Carl Schmitt

zum 70. Geburtstag (Duncker and Humblot 1959) 35.

392  Carl Schmitt, ‘Die Tyrannei der Werte’ in Säkularisation und Utopie: Ebracher Studien. Ernst Forsthoff

zum 65. Geburtstag (Kohlhammer 1967) 37. Schmitt’s essay has recently been republished as a stand-alone
volume with an excellent afterword by Christoph Schӧnberger that examines Schmitt’s relationship to the
60 Consolidation, 1951–1959

Schmitt sneered that Bonn Weimer, it Karlsruhe. Persuaded by his young protégé,
Ernst-Wolfang Böckenförde, to speak at a colloquium in February 1959, Schmitt used
the occasion to vituperate the recent moralization of law and lament the emergence of
constitutional judges as ‘unmediated executors of value’ (unmittelbare Wertvollzieher).
Declarations and assessments of value, Schmitt railed, could never be a source of
­legitimacy. They were merely a boot-strapping exercise propelled by judicial vanity
and self-importance. 393
As the Court extended Lüth’s logic to other areas of law and other fundamental rights,
Schmitt’s disgust grew. Six years after Lüth Schmitt voiced his disdain in mocking verse:
In Karlsruhe, there grows a rubber tree.
Lemurs shuffle through the green
And hang a dream of liberty—
As Value on this rubber tree.
Well.
What have you all to say thereto?
We say: Psst—taboo!394

But Schmitt’s, as he never tired of reminding correspondents, was the voice of a lonely
exile. The Smend school increasingly dominated the academy, which in its turn was
increasingly influenced by the jurisprudence of the Constitutional Court. 395 So, after
Lüth, was the German judiciary. After Lüth, the Court was not only the sole judge of
the constitutionality of laws, it was, where fundamental rights were in play, the final
arbiter of each law’s judicial application. All judges now had to work with an eye to the
impact of constitutional norms on ordinary law—with an eye, that is, to the case law of
the Constitutional Court.
In the Civil Servants and Gestapo judgments, the Court had consolidated its monop-
oly over constitutional jurisdiction. In Lüth, it constitutionalized all jurisdictions. Already
ensconced at the summit of the legal order, the Constitutional Court ensured in Lüth that
its writ reached that order’s every nook and cranny. Future commentators considered Lüth
the Magna Carta of fundamental rights in the Federal Republic. The judgment has been
commemorated with a breathless string of superlatives. In its own historical moment,
Lüth marked the culmination of the Court’s consolidation and a manifesto of its future
role. It cast the Court as an arbiter of constitutional value and an aggressive enforcer of
­f undamental rights.
The Court would extend this vision, and expand Lüth’s balancing logic, in another
landmark fundamental rights decision delivered five months later. 396 The underlying
facts were fairly mundane—the complainant wished, in despite of a regional ordin-
ance, to open a second pharmacy in a small Bavarian hamlet. In its vindication of the
complainant’s vocational freedom under Article 12 GG, the First Senate outlined the
proportionality test that would become the signature fundamental rights framework,
not only for the German Constitutional Court, but for constitutional tribunals around
the world.

Constitutional Court. Christoph Schӧnberger, ‘Werte als Gefahr für das Recht? Carl Schmitt und die Karlsruher
Republik’ in Carl Schmitt, Die Tyrannei der Werte, 3rd edn. (Duncker and Humblot 2011) 57–91.
393  Schmitt, ‘Die Tyrannei der Werte’ (n 392) 45.
394 In Reinhard Mehring, Carl Schmitt: Aufstieg und Verfall (CH Beck 2009) 523.
395  See Bernhard Schlinck, ‘Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichts­

barkeit’ (1989) 28 Der Staat 161.

396  7 BVerfGE 377 (1958).
 Conclusion 61

Together, the Lüth and Pharmacy judgments wrought a revolution in the Court’s fun-
damental rights jurisprudence and in its self-understanding. The full implications of this
revolution would become clear only later on.

Conclusion
By any standard, the 1950s were a remarkable decade for the Federal Constitutional
Court. On one view, the Court seemed to march from strength to strength, from triumph
to triumph. It emerged from the conflicts over its own status and the European Defence
Community Treaty with its independence secure and its prestige enhanced. It silenced
speculation about its political composition and partisan inclinations. It confirmed its
status as a court and as something more than a court. It gained near universal acknow-
ledgement as the guardian of the constitution and guarantor of the rule of law. It displayed
sufficient political savvy to appear non-political. It was deferential to government actors but
never subordinate to them. It often sustained government policy but never shrank—and
frequently expanded—its own jurisdiction. It emerged as an emblem of moral legitimacy,
courageously confronting and fearlessly repudiating the country’s recent past. It proved
willing to take fundamental rights seriously. It was a moral success story to match the eco-
nomic miracle. It even seemed to have the right enemies.
There was, however, a darker view—one that united Habermas on the Left with Schmitt
on the Right. This view held that, in its inaugural decade of consolidation, the Court had
consolidated too much. The new bastion of moral legitimacy risked becoming a redoubt of
moral monopoly. The Court may have given a moral compass to the young fiscal colossus,
but it was emphatically the Court who gave the compass and who would, presumably, con-
tinue to give it. Policy came from Bonn; values from Karlsruhe; but what came from the
People? Habermas and Schmitt both worried, in very different ways, about the transfer of
sovereignty to the Constitutional Court—Schmitt that the Court’s very existence fractured
the state’s capacity to decide, Habermas that it stripped the people’s opportunity to deliber-
ate. Schmitt feared the Court on authoritarian grounds, Habermas on democratic.
These fears were only partially captured—Schmitt’s more than Habermas’s—in
the most common early criticism of the Court, which was that it meddled in politics.
Beginning at least with the EDC controversy, the press began to warn of the rise of a ‘judi-
cial oligarchy’,397 of the emergence of Karlsruhe as the country’s ‘secret capital’,398 of the
dethroning of Bonn by its ‘sister to the South’.399 Many were alarmed during the EDC
debate that the fate of the nation could be decided by a handful of judges.400 But this hadn’t
happened in the EDC case and didn’t seem to happen in any other case. Throughout the
decade, critics sounded alarms about the Court’s ‘politicization’ and reformers called for
its ‘de-politicization’. Many of these calls, however, did not target the justices themselves.
The problem, many argued, was structural. Some thought it had to do with the machinery
of judicial appointment. Once appointed, the justices acquitted themselves admirably. The
justices consistently received more favourable press coverage individually than did the
Court collectively, with the chief justices Hermann Höpker-Aschoff, Joseph Wintrich, and

397  Fritz Bauer, ‘Juristenoligarchie’ FAZ (3 June 1952).

398  Hans Rolf Zimmermann, ‘Karlsruhe—die heimliche Hauptstadt’ Stuttgarter Zeitung (1 July 1952) 7.
399  Sethe (n 110).
400  See Walter Fredericia, ‘Vierundzwanzig Richter entscheiden über Deutschland’ Die Zeit (26 June 1952);

René Marcic, ‘Ein Areopag regiert Deutschland’ Salzburger Nachrichten (16 July 1952) 3.
62 Consolidation, 1951–1959

(after 1959) Gebhard Müller receiving the highest ratings of all.401 Even so, the Court itself
was reported much more frequently in a positive than in a negative light.402 Calls to limit
the Court’s jurisdiction were rare; calls to abolish it unheard of.
By the time Gebhard Müller became the the Court’s third and longest-serving chief
justice in 1959, the Court was the object of widespread approval but also of widespread
ignorance. Most citizens of the Federal Republic, blissfully enjoying unprecedented mate-
rial prosperity, troubled themselves little with the rise of a judicial giant in Karlsruhe. The
Court’s consolidation of power was little opposed in part because it was little observed. This
was especially so of the values jurisprudence that arose in the Court’s landmark fundamen-
tal rights judgments. When Der Spiegel surveyed the history of the Court in March 1961,
it said nothing about the fundamental rights landmarks, of Elfes or Lüth.403 High-profile
political cases seemed to decline in frequency as the decade progressed. By mid-decade,
Western integration was an accomplished fact that enjoyed the Court’s blessing. There
would not be another landmark foreign policy judgment until there was a major shift in
national foreign policy—not, that is, until after a Social–Liberal coalition took power at the
end of the 1960s. By the end of the Court’s first decade, some observers pronounced that
the era of the constitutional cause célèbre was over and done.404 Despite some spectacular
political confrontations, the Court had never invalidated a major legislative initiative of
the Adenauer government. This, however, and in stupendous fashion, would soon change.
It was only in retrospect that the Court’s early achievements would be widely recognized
and almost universally praised. In the fullness of time, the early Court would win plaudits
for its contribution to the democratization of the Federal Republic’s political culture.405 But,
as this chapter has shown, the major developments in the Court’s first years had more to do
with restoring the rule of law and protecting fundamental rights than with democracy as
such—though the Court did much to legitimate the role of parliamentary opposition as a
sine qua non of democratic governance. The enduring legacy of the Court’s earliest years
was to enshrine fundamental rights and the rule of law as preconditions of democracy. It was
during the Court’s second decade, and through its first wholesale rejection of a core govern-
ment policy, that the Court began to mark the contours of democracy itself.
But it was crucial for the Court that this first dramatic annulment of a govern-
ment initiative—its 1962 invalidation of Adenauer’s proposal for a second, effectively
government-controlled public television station—came after the Court had established
institutional independence and popular legitimacy. The Court of the 1960s could be polit-
ically aggressive because the Court of the 1950s had so conspicuously contradicted partisan
political expectations. Moreover, as coming to terms with the Nazi past became a broad
cultural preoccupation for the first time in the mid-1960s, the Court benefited hugely from
seeming already to have done so. Even in the 1960s, however, the Court used its power spar-
ingly. The real confrontation with the political organs came only in the 1970s. Chapter 3
will chronicle that collision in indulgent detail. In all its future trials, however, the Court
survived challenges to the legitimacy of its power in part because, in its earliest days, the
public acknowledged the Court’s legitimacy before appreciating its power.

401  See Oliver W Lembcke, Über das Ansehen des Bundesverfassungsgerichts. Ansichten und Meinungen in der

Öffentlichkeit 1951–2001 (BWV Verlag 2007) 49, 50.

402 ibid 47. 403 ‘Verfassungsgericht: Scherbengericht’ Der Spiegel (8 March 1961).
404  See ‘Die Zeit der Sensationsprozess ist vorbei’ Durlacher Tagblatt (17 November 1959); ‘Die Saison der

Sensationsprozesse ist vorbei’ Badischer Volkszeitung (25 November 1959).

405  See Bryde (n 158) 321.
 2
Confidence, 1959–1971
The solution, I believe, is not difficult, when one recalls that freedom of the press is
nothing less than the consequence of the freedom of thought and therefore a Protestant
right. For rights of this sort the German has already given his best blood, and for such
he may well be brought to the barricades once again.
—Heinrich Heine (1835)

There can be no doubt that, in principle, a constitutional court runs the risk of
encroaching in the political realm of the legislator. On the other hand, the Court has
decisively contributed to the fact that, from the state’s side and from the citizen’s, the
constitution is regarded and followed in its full extent.
—Helmut Schmidt (1969)

Introduction
Sebastian Haffner, one of the great political writers and historical essayists of the Federal
Republic, once wrote of Konrad Adenauer that although the chancellor ‘was, God
knows, enough of a patriarch and an autocrat, he was also at the same time a transition
to democracy—a democratic patriarch, a democratic autocrat’.1 Adenauer, Haffner con-
cluded, ‘habituated Germans to the idea that authority and democracy were compatible. He
gradually reconciled them, so to speak, with democracy’.2
Some have been tempted to apply this assessment to the Federal Constitutional Court.3
At the annual meeting of the association of German law professors in 1970, one of the par-
ticipants, Wilhelm Karl Geck, noted that ‘[t]‌he jurisprudence of the Federal Constitutional
Court has, as we all know, fostered the development of a true democratic understanding in
the Federal Republic—not least in the sphere of public opinion. There are decisions of the
Federal Constitutional Court that, as harbingers of the free Rechtsstaat and of democracy,
were years ahead of public opinion’.4 Many accounts of the early Federal Republic depict a
people whose attitudes toward democracy ranged from tepid to hostile, and whose gradual
embrace of republican governance had more to do with economic prosperity than with
democratic conviction. Many contemporary critics, especially on the political Left, objected
fiercely to what they saw as a restorationist impulse in the political culture of the Federal
Republic.5 There were too many continuities—of tone, of personnel, of style—between the
Bonn regime and its predecessors. Many longed for a more decisive break with the past.
Or at least for a frank discussion about the past. With rare exceptions, the Federal
Republic’s political leaders were unwilling, for most of the 1950s, to speak forthrightly

1  Sebastian Haffner, ‘Konrad Adenauer: der rechte Mann zur rechten Zeit’ in Sebastian Haffner, Im Schatten

der Geschichte (Deutsche Verlags-Anstalt 1985), 291.

2 ibid.
3  See Christoph Schӧnberger, ‘Anmerkungen zu Karlsruhe’ in Matthias Jestaedt and others, Das entgrenzte

Gericht. Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht (Suhrkamp 2011), 44.
4  Wilhelm Karl Geck, ‘Diskussionsbemerkung’ (1971) 29 Verӧffentlichung der Vereinigung der Deutschen

Staatsrechtslehrer 113.
5  See A. Dirk Moses, German Intellectuals and the Nazi Past (Cambridge University Press 2007), chs 2–6.
64 Confidence, 1959–1971

about Germany’s crimes. As we saw in Chapter 1, the Federal Constitutional Court was a
remarkable exception to this general pattern of official silence. Particularly in the SRP, Civil
Servants, and Lüth decisions, the Court defined the Basic Law as an anti-fascist instrument.
The Lüth decision was especially significant in this regard because it doubled as a powerful
manifesto for a democratic public sphere. In both its ‘free speech’ and its ‘politics of the
past’ dimensions, Lüth anticipated broader trends that, over the course of the next ten years,
would transform both political culture and public discourse in the Federal Republic.
The early 1960s witnessed a great awakening of popular attention to Nazi crimes. On
Christmas Eve 1959, two young Right-wing ruffians smeared swastikas on the walls of a
synagogue in Cologne, inspiring hundreds of imitators in the following weeks. Over the
next five years the West German public, hauntingly reminded that anti-Semitism was not
dead, watched the trials for murder and crimes against humanity of functionaries who oper-
ated death camps in Auschwitz, Chelmno, Belzec, Sobibor, Treblinka, Dachau, Stutthof,
and Mauthausen. Most dramatic of all were the 1961 trial of Adolf Eichmann in Jerusalem,
and the so-called ‘Auschwitz Trial’, held in Frankfurt between 1963 and 1965. Toward the
end of the latter trial, on 10 March 1965, the Bundestag voted, after a momentous debate, to
extend the statute of limitations for murder by providing that the twenty-year term should
commence in 1949 (with the founding of the Federal Republic) rather than in 1945 (with
the end of the War). On 26 February 1969, the Constitutional Court unanimously approved
the constitutionality of the extension.6 (With the Court’s prevenient blessing, Parliament
would extend the limitations period for Nazi crimes ten years more to 1979, and then abol-
ish the limit altogether.) A year earlier, the Court held unanimously that the validity of
Nazi-era legal provisions could be rejected by a judge who would commit obvious injustice
by applying them.7 Thus, as the public engaged in its first nationwide reckoning with the
legacy of Nazism, the Court continued to bolster its anti-Nazi credentials.
The Court also played an important role in what one is tempted to call the opening of the
West German public sphere. The last chapter highlighted the Court’s role in legitimating
parliamentary opposition and, in Lüth, individual dissent. The Court’s contributions to the
public sphere during its second decade were even more dramatic, as the Court issued judg-
ments that limited the ability of the federal government and of economically powerful pri-
vate parties to dominate or constrain public discourse. These judgments, and the mounting
frequency of direct individual complaints, enhanced popular esteem for the Court as a vin-
dicator of fundamental rights, and fostered a growing popular perception that fundamental
rights were antecedent and essential to democracy.8 The Court, for its part, increasingly
understood itself—and presented itself—as a fundamental rights tribunal. The public’s
esteem in this regard was broadly justified, though with jarring exceptions. Even the excep-
tions came in the first major cases with published dissents, so that at least some justices
were still heard speaking as champions of fundamental rights. It is difficult to overstate how
novel such dissenting voices were in the German tradition. The Court thereby replicated
within its own jurisprudence the kind of plurivocality that was emerging in the country at
large. The Court’s increasingly pronounced role as an enforcer of fundamental rights, and
its increasingly central role in opening the country’s public sphere, were the most lasting
legacies of its second decade. They confirmed the public’s perception of the Court as a bul-
wark of the Rechsstaat and a catalyst of democracy.

6 25 BVerfGE 269 (1969). 7  23 BVerfGE 98 (1968).

8  Fora comparative discussion of the right of individual complaint, see Georg Brunner, ‘Der Zugang des
Einzelnen zur Verfassungsgerichtsbarkeit im europӓischen Raum’ (2002) 50 Jahrbuch des ӧffentlichen Rechts
der Gegenwart 191.
 Introduction 65

A. Chief Justice Gebhard Müller

The Court began its second decade with a new president. Gebhard Müller faced a very dif-
ferent set of circumstances when he became the Court’s third chief justice in February 1959
than Hermann Höpker-Aschoff had faced upon becoming the first chief justice in 1951.
No more was the Court an institutional greenling sprouting precariously in uncultivated
jurisprudential soil. Not only had the Court consolidated institutional authority during its
first decade, it had developed institutional memory. The Court now had a tradition of its
own to guide its procedure, and a jurisprudence of its own to inform its judgments. It also
enjoyed an enviable continuity of personnel. A 1956 amendment to the Court’s statutory
charter decreased the number of justices from twenty-four to twenty. As of 1960, fifteen
of the twenty justices—seven on the First Senate, eight on the Second—had been with the
Court since its founding. Karl Heck and Egon Schunck, two of the five non-original justices,
had jointed the Court in 1952, when it was only a few months old. Just two of the twenty
justices—one of them Müller, the new chief—had been appointed later than 1955.
Appointed in 1959 to replace the deceased Josef Wintrich, Müller might have been the
Court’s first president had he not been its first defendant. Born in 1900, Müller trained as a
jurist and began his political career as a functionary of the Centre Party in the early 1930s.
His first foray into politics was short-lived. When the Nazis seized power in 1933, the Centre
Party was banned with all the rest. Müller pursued his judicial vocation throughout the
peacetime years of the Nazi era. Like other jurists, he was reassured by the regime’s veneer
of legality. He joined National Socialist jurist associations, but consistently ‘forgot’ to pay
his fees. He never joined the party itself. Müller was drafted briefly into the Wehrmacht in
1940, where he worked as a secretary on the Western front, and again in 1945, as part of the
last desperate defence of the home front. After a brief imprisonment at the hands of French
occupation authorities, Müller became a CDU politician of the first hour. He rose rapidly
through the ranks of Württemberg-Hohenzollern state politics, becoming state minister
president in August 1948. In this office, Müller distinguished himself as the champion of
two great causes: the creation of a West German nation and the consolidation of a Southwest
German state.
In the latter cause, which aimed to fuse Württemberg-Baden, Baden, and Württemberg-
Hohenzollern, Müller was joined by Württemberg-Baden’s minister president, Rheinhold
Maier. He was passionately opposed by Baden’s premier, the diminutive diehard Leo
Wohleb. Wohleb petitioned the Constitutional Court, before it was even staffed, to enjoin a
referendum on the state’s creation, arguing that Baden was demographically doomed by the
plebiscite’s structure to be swallowed by its more populous neighbours.
In the meantime, Gebhard Müller had emerged as a consensus candidate for the inaugu-
ral presidency of the Constitutional Court. Müller was willing, but wanted to await resolu-
tion of the Southwest state controversy. In the event, however, he couldn’t have it both ways.
Müller and Maier won their case, but with Hermann Höpker-Aschoff presiding over the
Court that decided it. Müller preferred this outcome to its opposite. Like Höpker-Aschoff,
Müller loved politics and was loath to abandon it for juristic isolation in somnolent
Karlsruhe. Müller was again the consensus favourite for the Court’s presidency when
Höpker-Aschoff died in January 1954. By then, however, Müller was the newly installed
minister president of Baden-Württemberg, the state whose creation he had championed.
He was unwilling to resign the post so soon. For five years he governed Baden-Württemberg
at the head of a super coalition of all parties. Müller proved a unifying leader and a com-
petent manager—successful, efficient, and popular. When, in autumn 1958, he was asked
for the third time to take the reins of the Constitutional Court, he resigned his premiership
66 Confidence, 1959–1971

with a heavy heart.9 It didn’t help when a friend indelicately noted that no one had yet sur-
vived the office of chief justice.10
Justice Willi Geiger later portrayed the new chief justice as every inch a Swabian, ‘and that
means: honest to the bones and a little bit sly, disciplined, … unsurpassed in his work ethic,
energy, and regard for the immutably moral in the jurisprudence of the First Senate’.11 He
came to Karlsruhe, Geiger impishly added, ‘with the quickly corrected notion that he could
handle the members of the Federal Constitutional Court as he did his cabinet in Stuttgart’.12
Müller inherited an institutional setting far more stable than that which confronted either
of his predecessors. The first crisis of the new decade, two years into Müller’s presidency,
showed just how far the Court had come.

B.╇The ‘German miracle’

If the Constitutional Court of the late 1950s exuded stability and confidence, so, spectacu-
larly, did the Federal Republic itself. The heart of the transformation, of course, was eco-
nomic. The West German economy was in its finest historical fettle, the so-called ‘economic
miracle’ generating palpable prosperity and staggering statistics. Between 1950 and 1960,
real GDP in the Federal Republic grew at an annual rate of 7.9 per cent.13 Exports quad-
rupled, GNP tripled, and West Germany’s share of world exports swelled from 6 to 10 per
cent. Unemployment virtually disappeared; a mounting labour shortage drove a massive
influx of foreign labour.14 The fruits of growth were sufficiently distributed that all levels
of West German society experienced an unprecedented increase in economic well-being.15
In Hans-Peter Schwarz’s famous assessment, a people who once wished to acquire some-
thing had become a people who wished now to preserve something.16 This spectacular
socio-economic transformation had a political corollary. A 1957 CDU election ad featured
a little girl asking her father what a proletarian was. When the father explained that a prole-
tarian was a poor worker dwindling in abject poverty, the bemused daughter retorted that
such people no longer existed. The father’s punch-line was that someone should tell that to
the SPD.
The 1957 Bundestag election did just that. Though the SPD’s share of the vote increased by
3 per cent to 31.8 per cent, the Union’s share grew by 5 per cent to an absolute majority of 50.2
per cent, something no party had ever achieved in the tortured history of German democracy.

9╇ Twenty years later Müller highlighted the paradox that, although his interests and inclinations best suited

him to be a judge, no office he held gave him more happiness than the premiership of Baden-Württemberg. Hans
Baush and Gebhard Müller, Gebhard Müller blickt zurück (Landtag von Baden-Württemberg 1980) 44.
10╇ See Gebhard Müller, ‘Ansprache’ in Das Bundesverfassungsgericht, 8. Dezember 1971. Festakt aus Anlass der

Verabschiedung des Präsidenten Dr Gebhard Müller, der Bundesverfassungsrichter Prof. Dr Dr Gerhard Leibholz,
Prof. Dr Erwin Stein, Gregor Geller (CF Müller 1972) 33.
11╇ Willi Geiger, ‘Ansprache anläβlich der Feierstunde des Bundesverfassungsgerichts am 9. November 1977

zur Verabschiedung von Bundesverfassungsrichter Prof. Dr. Willi Geiger’ Bundesarchiv (Koblenz) (Nachlass
Gerhard Leibholz, N 1334/299).
12╇ibid.
13╇Gerd Hardach, ‘Krise und Reform der Sozialen Marktwirtschaft. Grundzüge der wirtschaftlichen

Entwicklung in der Bundesrepublik der 50er und 60er Jahre’ in Axel Schildt, Detlef Siegfried, and Karl Christian
Lammers (eds), Dynamische Zeiten. Die 60er Jahre in den beiden deutschen Gesellschaften (Hans Christians
Verlag 2000) 203.
14╇ See Ulrich Herbert and Karin Hunn, ‘Gastarbeiter und Gastarbeiterpolitik in der Bundesrepublik. Vom

Beginn der offiziellen Anwerbung bis zum Anwerbestopp (1955–1973)’ in Dynamische Zeiten (n 13) 273–310.
15╇ GDP per person grew at an annual rate of 6.8 per cent while cost of living increased at an average of only 1.9

per cent per year. See Hardach (n 13) 203.

16╇ Hans-Peter Schwarz, Die Ära Adenauer. Gründerjahre der Republik 1949–1957 (Deutsche Verlags-Anstalt

Stuttgart 1981) 335.
 Adenauer's Last Stand 67

Small parties—a lurking reminder of Weimar fragmentation in the early 1950s—all but dis-
appeared. The Federal Republic was now a three-party state—the beefy CDU, the battered
SPD, and the bantam FDP, which had shrunk by nearly two percentage points to only 7.7 per
cent. The outcome supplied an existential shock to the Social–Democratic system. It also
supplied the stimulus for radical reform behind the crusading foursome of Carlo Schmid,
Fritz Erler, Herbert Wehner, and Willy Brandt. Their goal was to modernize the SPD as a
precondition to capturing government power. This required transforming the traditional
workers’ party (Arbeiterpartei) into a people’s party (Volkspartei). It meant renouncing the
party’s Marxist roots and making peace with the market; it meant courting the churches
and endorsing the army. It meant accepting Adenauer’s dream of Western integration as a
fait accompli. It meant a strategic embrace—nuzzling up to Christian democracy with the
intention, ere long, of wresting power from it. The reformers launched their agenda with
a new party platform announced in November 1959 at a convention in Bad Godesberg.17
The so-called ‘Godesberg Program’ marked the end of an era in the political history of the
Federal Republic. No more would the Bundestag serve as the arena of conflict that it had
been in the early 1950s, where majority and opposition clashed steel and exchanged fire in
existential confrontation. As the 1960s began, the SPD’s opposition was hushed, restrained,
and incremental.
Changes were afoot for Christian Democrats as well. Wishing to maintain a broad appeal
and preserve its absolute majority, the CDU/CSU moved slowly away from its ideological
identification with Catholicism and natural law. West German politics seemed to be arriv-
ing at ‘The End of Ideology’, an ostensibly international phenomenon trumpeted in a 1960
tract by the American sociologist, Daniel Bell.18 Like the ‘End of History’ three decades
later,19 the end of ideology didn’t last long. But while it lasted, this convergence of policy
and departure from dogma helped make the period between the Godesberg program of
1959 and the grand coalition of 1966 the dullest in the parliamentary history of postwar
Germany. A corollary and consequence was a dramatic decrease in the SPD’s filing—at the
federal level—of constitutional complaints. During the 1960s, the high profile cases that
came to Karlsruhe did not arrive on the train from Bonn.

I.  Adenauer’s Last Stand

The end of one political era, of course, also marked the beginning of a new—and the begin-
ning of the end for the undisputed symbol of the outgoing order. Five days into the new
decade, on 5 January 1960, Konrad Adenauer celebrated his eighty-fourth birthday. The
chancellor was nearly a decade older than Bismarck had been when that elder statesman
resigned in 1890, and only a year younger than Hindenburg had been when the old general
handed power to Hitler in 1933. As a biological matter, it was clear that ‘the old one’ (der
Alte) couldn’t remain chancellor forever. As a political matter, it was clear that his grasp
was already slipping. Adenauer had reached the summit of his power in 1957/1958 with his
resounding electoral triumph and the climax of the economic miracle. His four-year fall
began the following year.

17  See Susanne Miller, Die SPD vor und nach Godesberg (Bonn-Bad Godesberg 1974); Kurt Klotzbach, Der

Weg zur Staatspartei. Programmatik, praktische Politik und Organization der deutschen Sozialdemokratie 1945
bis 1965 (Dietz 1982).
18  See Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties (Harvard University

Press 1960).
19  See Francis Fukuyama, The End of History and the Last Man (Free Press 1992).
68 Confidence, 1959–1971

Theodor Heuss’s second five-year term as federal president expired in 1959.

Adenauer—who saw his own putative successor, the finance minister, Ludwig Erhard,
as singularly unfit for the chancellorship—worked behind the scenes to secure Erhard’s
nomination for the presidency. Adenauer’s responsibility for the proposal was a secret to
no one, and the public outcry was clamorous. The Hamburg daily Die Welt spoke of a ‘mur-
der of the crown prince’.20 The nomination was quickly withdrawn, but Adenauer com-
pounded this gaucherie with another. He offered himself for the job, proposing to construe
the constitution in a ‘Gaullistic’ fashion. Adenauer would play a presidential role under the
Basic Law similar to that played by Charles De Gaulle under the constitution of the French
Fifth Republic. As an exercise in comparative constitutional law this was unadulterated
nonsense—a reckless flout to the maxim that one must compare what is in fact comparable.
As an exercise in political posture and manipulation it was supremely maladroit—a trans-
parent bid to cling to power in defiance of constitutional precept and democratic process. It
evoked a faint echo of Carl Schmitt’s vision of the president as guardian of the constitution.
It left the chancellor looking authoritarian and out of touch. In short order, the proposal was
howled out of existence.
The crisis soon passed, but the damage was done. Adenauer’s loss of prestige was enor-
mous. His vaunted political instincts had failed him, his sure-footedness had gone wob-
bly. The world statesman had conducted a one-man farce routine. And he looked so old.
His departure, all realized, was only a matter of time. In the event, he remained in power
another four years. But they were four years of slow, relentless decline. Accelerating
Adenauer’s descent, and at its chronological centre, was a final, epic clash with the Federal
Constitutional Court.

A.╇The fight over ‘private’ television

It was a matter, reported the London Economist, in which ‘[p]â•„olitics, entertainment, and
constitutional law’ were ‘gloriously mixed up’.21 After his resounding electoral triumph in
1957, Adenauer was persuaded that this had been the last federal election in which tele-
vision coverage would not be decisive. He was also convinced that, to a man, the lords of
Germany’s regional television networks sympathized with liberals and Social Democrats.22
The chancellor resolved to harness the power of television to his own ends. He was intrigued
by the British model, where the private ITV (Independent Television) operated alongside,
and competed with, the public BBC. Adenauer hoped to establish a second national tele-
vision network in West Germany—one that could rival the existing ARD and serve the
interests of his own federal government.23
Adenauer’s assessment of television’s growing importance in West German soci-
ety and politics was indubitably correct. Vast numbers of West Germans were buying
televisions and spending increasingly large swathes of their leisure time worshipping
at this newfangled altar of modernity. Contemporaries chronicled the emergence of a
‘Television Nation’. Cinema revenues collapsed, and West German film entered its first
crisis.

20╇ See Georg Schrӧder, ‘Bonn spricht vom Kronprinzenmord’ Die Welt (27 February 1959) 2.
21╇ ‘Jamming from Karlsruhe’ The Economist (31 December 1961) 1373.
22╇ See Hans-Pater Schwarz, Die Ära Adenauer 1957–1963 (Deutsche Verlags-Anstalt 1983) 167; Hans-Peter

Schwarz, Adenauer: Der Staatsmann, 1952–1967 (Deutsche Verlags-Anstalt 1994) 621.

23╇Schwarz, Die Ära Adenauer 1957–1963 (n 22).
 Adenauer's Last Stand 69

Television reshaped politics as well as entertainment. By 1960, a million Germans report-

edly watched the ARD–Tagesschau political reports24—more than subscribed to any daily
newspaper with the exception of Axel Springer’s boulevard giant Bild. In autumn 1960, tel-
evised debates turned the tide of America’s presidential election, in which the dour Richard
Nixon lost to the telegenic John Kennedy. Adenauer, who in the 1961 federal elections would
face a challenger, Willy Brandt, who consciously posed as a German Kennedy, could hardly
fail to take note. In due course, he took action.
Adenauer’s interest in the political possibilities of television took root before the 1957
elections made the matter seem urgent. Indeed, the chancellor had been intrigued by the
new mass medium since shortly after taking office in 1949. Adenauer hoped television could
serve as a mouthpiece for his government. He set special stock by long-range broadcasts,
hoping to shape popular opinion in the Soviet zone as well. As early as 1953, the government
proposed a federal television bill, but did so too late in the legislative season for Parliament
to act on it. The proposal, moreover, sparked an immediate constitutional controversy. The
question was whether the states or the federal government had jurisdiction to regulate tel-
evision. On the one hand, under Article 30 GG, the states enjoyed ‘cultural sovereignty’
(Kulturhoheit). On the other hand, under Article 73, the federation or Bund wielded exclu-
sive jurisdiction over ‘postal and telecommunication services’. The states asserted jurisdic-
tion over television’s content; the Bund over its technical operation. The split required a
mutual agreement, but no agreement was forthcoming.25
There followed four years of fruitless negotiation. After winning an absolute majority in
the 1957 elections, however, Adenauer was determined, with his strengthened hand, to push
again for federal broadcasting power. In February 1958, the chancellor assigned his interior
minister, Gerhard Schröder, to supervise drafting of a federal broadcasting bill that would
provide for both short- and long-wave broadcasting, and would create a second national
television network. State minister presidents, concerned for the fate of regional television
and fearing the expansion of federal power, resisted. They were led by Peter Altmeier, CDU
premier of Rheinland-Pfalz.26 In his influential history of the Adenauer era, Hans-Peter
Schwarz reported they were crucially helped behind the scenes by Gebhard Müller, erst-
while premier of Baden-Württemberg, and now chief justice of the Constitutional Court.27
Müller heatedly denied playing any such role.28

24  Eckart Conze, Die Suche nach Sicherheit: Eine Geschichte der Bundesrepublik Deutschland von 1949 bis

in die Gegenwart (Siedler Verlag 2009) 235. See also Knut Hickethier, Geschichte des deutschen Fernsehens
(Metzler 1998).
25  For a survey of the negotiations, see Rolf Steininger, ‘Runfunk zwischen Bund und Ländern 1953–1961. Ein

Beitrag zur Innenpolitik Adenauers’ (1976) 4 Politische Vierteljahresschrift 474.

26  See Heinrich Küppers, ‘Adenauer und Altmeier im Fernsehstreit 1958–1961’ (1987) 35 Vierteljahreshefte

für Zeitgeschichte 625.
27  Hans-Peter Schwarz, Die Ära Adenauer 1957–1963 (Deutsche Verlags-Anstalt 1983) 167.
28  Müller wrote to Schwarz, asking the historian to name his sources and complaining that his account

implied Müller had exercised influence on the outcome of the Court’s judgment. Gebhard Müller to Hans-Peter
Schwarz, 22 August 1984, Landesarchiv Baden-Württemberg (Stuttgart) (Nachlass Müller, Q1135 Bü 705).
Schwarz answered that his account relied on the papers of Adenauer and his closest circle, but that agreements
with the proprietors of those papers sometimes prevented direct citation. He explained that historians develop
general pictures based on many sources that sometimes prevent citation to a single source. ‘You must in any
case … know for certain’, Schwarz wrote, ‘that Adenauer and his close circle saw in you a principal foe of the
questionable television plans’. Schwarz deemed Adenauer’s television plans highly questionable politically as
well as constitutionally, and in his view it would have been entirely legitimate for Müller to work to upend those
plans, even as sitting chief justice. But if Müller were to assure him that he had not done so after assuming the
Court’s presidency in 1959, Schwarz would note the fact in his annotations and alter the offending passage in the
text. Hans-Peter Schwarz to Gebhard Müller, 27 August 1984, Landesarchiv Baden-Württemberg (Stuttgart)
(Nachlass Gebhard Müller, Q1135 Bü 705). Schwarz offered to meet Müller personally to discuss the matter, but
it is unclear whether they ever did. In any case, no new edition of Schwarz’s second volume on Die Ära Adenauer
has yet appeared. Hans Bausch, an historian of German television who claimed to be the first to have researched
70 Confidence, 1959–1971

The premiers collectively insisted that a new national network could only be organized
as a public-law association akin to the state television networks already in operation. The
federal government, they allowed, could participate in the governance of such a network by
sending representatives to sit on its board. The states affirmed their willingness to conclude
treaties with the feds over the governance of long- and short-range transmissions, but the
federal government found the states’ terms intolerable.
In 1960, the Adenauer government proposed a bill that would erect three federal televi-
sion stations: ‘Deutsche Welle’, for short-wave foreign transmissions, ‘Deutschlandfunk’,
for long-wave transmission for all Germany, and ‘Deutschland-Fernsehen’, a second net-
work for the Federal Republic. In response, the state bosses cobbled together a committee to
continue negotiations, which continued to be fruitless. Parliament passed the proposed law
in June 1960, but did so without approving the ‘Deutschland-Fernsehen’ network, which
the Bundestag committee for cultural politics, fearing an affront to the states, had excised
from the bill. Adenauer, however, was unbending. He wanted a second national network.
On 8 July 1960 the chancellor presented the CDU/CSU premiers with the possibility of
creating a second network as a private, limited liability company. Word of these discus-
sions, however, soon reached the SPD premiers as well, prompting state leaders from both
parties to issue a series of counterproposals, which Peter Altmeier presented to Adenauer
on 22 July 1960. Altmeier received an icy rebuff. The chancellor’s patience was exhausted.
After seven years of sterile consultation, the patriarch of the Federal Republic, unlike
Father Israel, would wait no more. His eye on the electoral calendar, Adenauer opted to
go it alone. On 25 July the chancellor, together with his justice minister, Fritz Schäffer,
founded Deutschland-Fernsehen, LLC, with headquarters in Adenauer’s native Cologne.
Of the original share capital of 23,000 Deutschmarks, 12,000 were furnished by the federal
government and 11,000 by Schäffer himself, whom the company charter commissioned, as
‘trustee’, to advocate the interests of the states. The company’s stated purpose was to give
television viewers at home and abroad a comprehensive portrait of contemporary Germany.
Its board would consist of at least ten, at most fifteen, members—one representative each
from the Protestant Church, the Catholic Church, the Jewish Central Council, and the
respective associations of employers and unions; and up to ten representatives from the fed-
eral government. The states declined to participate in the company’s governance. A month
after its founding Schäffer, their ostensible trustee, obligingly conferred his shares on the
federal government, which thereby became the company’s sole shareholder. The states pre-
ferred to advocate their interests not in Cologne but in Karlsruhe.
In autumn 1960, the SPD state government in Hamburg—joined in swift succession by
its sisters in Bremen, Hessen, and Lower Saxony—asked the Second Senate to enjoin the
network’s founding. Schleswig-Holstein’s minister president, Kai-Uwe von Hassel (CDU),
declined to join the complaint on the controversial ground that recent judgments had

the Television controversy in depth, wrote to Müller sympathetically that he could ‘only shake his head’ over
Schwarz’s account. ‘I can assure you’, Bausch wrote, ‘that neither in reality nor in the literature is there the slight-
est evidence that … behind the scenes you played “a leading role in thwarting the Chancellor’s television policy”.
To me it is unfathomable how Herr Schwarz can hazard such a statement’. Hans Bausch to Gebhard Müller, 27
October 1984, Landesarchiv Baden-Württemberg (Stuttgart) (Nachlass Müller, Q 1135 Bü 705). The government
was undoubtedly worried about Müller. Adenauer wrote to Hans Globke in September 1960 that someone from
the government ‘should contact Müller and enlighten him concerning the political significance of the whole
matter. Even if he’s not [on the deciding Senate], he could still do damage with critical comments’. Adenauer
to Globke, 5 September 1960, in Rudolf Morsey and Hans-Peter Schwarz (eds), Adenauer Briefe 1959–1961
(Schöningh Paderborn 2004) 160.
 Adenauer's Last Stand 71

shaken his confidence in the country’s highest court.29 The complaining states, represented
by Adolf Arndt, argued that the federal government’s unilateral creation of a self-owned
and self-operated television network violated Article 5 GG, which guaranteed the freedom
of press and broadcasting; Article 30, which reserved to the states all powers not expressly
granted to the Bund; and the constitutional principle of federalist comity (bundesfreundli-
ches Verhalten—literally, federation-friendly conduct).
The federal government countered that Article 73’s grant of exclusive federal jurisdiction
over postal and telecommunication services empowered the federal government to regu-
late television broadcasting tout court. Moreover, establishing television networks was not a
prerogative of public administration at all, so founding the LLC didn’t fall under Article 30,
which governed public-law, but not private-law administration. Finally, the government pled
kraft Natur der Sache: it asserted implicit authority to take steps necessary to fulfil express
obligations—a German variant on the US ‘necessary and proper’ doctrine.
After oral arguments in late November 1960, the Second Senate enjoined transmissions
pending its decision on the merits.30 This was a blow to Adenauer, who hoped to begin
broadcasts on 1 January 1961 and employ the new platform for the whole of the coming elec-
tion year. Rudolf Katz, chairman of the Second Senate, had explained earlier to Schrӧder,
the interior minister, that because the case was so complex, a decision before the end of the
year was improbable.31 Time ticked slowly as the Court deliberated and the public specu-
lated. Rarely had a Court judgment been so anxiously anticipated by public, press, and
political class. Tension mounted when the Court revealed that it would announce its judg-
ment on the final day of February 1961.
The appointed day arrived at last. An army of lawyers, journalists, and political opera-
tives squeezed into the crowded chamber of Prince Max Palace. Rudolf Katz was gravely
ill, so Egon Schunck, the Second Senate’s senior justice, read the dispatch. The summary
lasted ninety minutes, an obvious strain on the fading vocal powers of the septuagenarian
Schunck.32 But the substance of the judgment was such that even Schunck’s weak voice suf-
ficed to astonish the crowd and to rock the country. The judgment sparked a political storm,
the likes of which the Court hadn’t seen since the EDC feud eight years earlier.
The Senate ruled for the states across the board.33 Its decision was dramatic and thor-
ough. The Court held, to begin with, that Article 73’s grant of federal control over ‘pos-
tal and telecommunications services’ applied only to the technical side of broadcasting; it
conferred no authority to regulate the field of broadcasting ‘as a whole’.34 In cases of doubt,
there was a presumption against federal authority. Broadcasting, moreover, was a ‘cultural
phenomenon’, as well as a subfield of telecommunications. Insofar as cultural matters could
be regulated at all, Article 30 GG vested power to do so exclusively with the states.35 The
question of competence, in short, ran squarely against the federal government and in favour
of the states. This was the case’s crucial question, and having unambiguously disposed of it,
the Senate might well have let the matter rest. Instead it left no stone unturned. The opinion’s
most striking and controversial sections were still to come.
The first of these addressed the question of federalist comity (bundesfreundliches
Verhalten). For its style as well as its substance, this section was sure to impart pain to the
federal government. One comparative lawyer called it an ‘an extended lecture on political

29  See ‘Hassel zweifelt am Verfassungsgericht’ FAZ (10 November 1960); ‘Professor Friesenhahn gegen Hassel.

Kritik an Verfassungsgerichtsentscheidungen zurückgewiesen’ Badische Neueste Nachrichten (8 February

1961) 3.
30  12 BVerfGE 36 (1960). 31  Rudolf Katz to Gerhard Schröder, 5 October 1960, BAK B 136/1770.
32  See ‘Scherbengericht’ Der Spiegel (8 March 1961) 18. 33  12 BVerfGE 205 (1961).
34  ibid 225–28. 35 ibid 229.
72 Confidence, 1959–1971

morality’.36 Federalist comity, the Senate noted, was an unwritten principle of constitutional
law that governed interactions between the states and the feds. It reached the manner as well as
the material of those interactions.37 During the latter stages of negotiation, and in its unilateral
founding of the new network, the federal government had flouted this principle with escalating
prodigality. The Senate censured the government for (1) attempting—‘following the principle
divide et impera’—to cut a deal with some states and coerce the others to accede; (2) exclud-
ing the SPD minister presidents from negotiations; (3) excluding the states entirely from the
network’s founding; (4) presuming unilaterally to appoint a trustee in the states’ behalf; and,
generally, (5) riding rapidly and roughshod over the state’s constitutional prerogatives and
legitimate interests.38 The federal government’s actions were, the justices wrote, ‘absolutely
incompatible with the requirement of federalist comity’, no matter how unhelpful the states
had been during previous negotiations.39 The Senate seemed to be suggesting that the gov-
ernment’s conduct was ungentlemanly as well as unconstitutional—un-republican as well as
illegal. Even if the network’s founding had been, in all other respects, constitutionally benign,
the manner and method of its creation would have condemned it.
But the network’s founding was not in other respects benign. More damning than the
Senate’s initial finding that the federal government had exceeded its competence was the
Senate’s terminal holding that it had violated a fundamental right. In an earlier judgment
the Court had held that Article 5’s guarantee of the freedom of the press not only protected
individual journalists, it secured ‘the institutional independence of the press—from the
gathering of information to the spread of news and opinions’.40 The same principle applied,
perhaps with greater force, to broadcasting. Broadcasting was more than a ‘medium’ in the
shaping of public opinion; it was an ‘eminent factor’ in public discourse.41 It was at least as
important as print journalism in shaping public opinion, and it required no less institu-
tional freedom.42 Indeed, because the necessary technical machinery was so costly and the
available wavelengths so scarce, broadcasting required even greater protection. State par-
ticipation in the press was allowable only if competition from numerous and independent
papers assured the survival of a free press.43 Similarly, state involvement in broadcasting
was acceptable only where ‘all socially relevant forces have a voice, and if the freedom of
reporting remains untouched’.44 This, alas, was not the case with Deutschland-Fernsehen,
LLC. That network was ‘wholly in the hands of the state’. It was ‘an instrument of the Bund’.
It would be ruled by the federal government and dominated by the federal chancellor.45
Even if the original allocation of influence was appropriate, nothing in the network’s char-
ter secured that allocation.
Article 5 demanded much more. It demanded the participation of all relevant voices, as
well as content marked by at least ‘a minimal measure of balance, objectivity, and reciprocal
respect’.46 The founding of Germany Television, and its proposed operation, failed to meet
these demands. For all these reasons, the Second Senate banned it.

B. Reactions to the Television judgment

The decision, reported the Frankfurter Allgemeine Zeitung, ‘worked like a sensation’.47 Der
Spiegel called it a ‘thunderbolt from Karlsruhe’.48 Government leaders in Bonn admitted that

36  Edward McWhinney, Constitutionalism in Germany and the Federal Constitutional Court (Sythoff 1962) 63.
37  12 BVerfGE 205 (n 33) 254–55. 38  ibid 255–59. 39 ibid 258.
40  ibid 260 (citing 10 BVerfGE 118, 121 (1959)). 41 ibid 260. 42  ibid 260–61.
43 ibid 260. 44 ibid 262. 45 ibid 263. 46 ibid 206.
47  ‘Bestürzung in Bonn über das Urteil’ FAZ (1 March1961) 4.
48  ‘Nach dem Dunkel Licht?’ Der Spiegel (8 March 1961) 15.
 Adenauer's Last Stand 73

the judgment left them speechless.49 Others, regaining their powers of speech, denounced the
decision as ‘bankrupt’, grumbling that it had created an ‘untenable situation’.50 Particularly
galling was the ‘tenor’ of the judgment, in which officials detected a pronounced aversion
to ‘Bonn’ and an extreme fondness for federalism.51 Government circles were additionally
angered by reports that Justice Gerhard Leibholz of the non-participating First Senate told
journalists that he supposed Bonn would seek revenge by amending the FCCA after the
autumn elections.52
Officially, the federal government issued no immediate statement. But individual cabi-
net members and Union politicos freely vented their stimulated spleen. Gerhard Schröder
publicly criticized the decision, which he thought rested on an aggressive construction of
a few weak spots in the Basic Law.53 At a meeting of the CDU Bundestag faction, Eugen
Gerstenmaier, president of Bundestag, professed that he honestly could not understand one
of the judgment’s central sentences.54 Heinrich Krone, the faction’s chairman, wondered
whether the states were capable of speaking for those Germans who lived beyond the border
of freedom.55 These statements were greeted by thunderous applause from the party faith-
ful. The party press inveighed against the judgment as well. ‘After studying the opinion’,
groaned one CDU-leaning paper, ‘one cannot shake the feeling that here the assignment of
a political decision to a juristic body has not proved an unqualified boon to parliamentary
democracy. After this Karlsruhe judgment we can only emphatically repeat our warnings
against a jurists’ democracy [Justitiardemokratie]’.56 Many sensed the beginnings of a brawl
between the federal government and the Federal Constitutional Court.57 Officially, how-
ever, the ruling party and its chieftains kept mum.
Not so the opposition. Social Democrats were jubilant. Adolf Arndt and his legal team
had hoped for a narrow victory on specific points. But Arndt’s tour de force brief—in both
the sweep of its argumentation and the sharpness of its prose—had been embraced in the
Court’s published opinion. As Der Spiegel reported, Arndt now found himself in the role of
‘a Samson who had struck down Adenauer, Schäffer, Schröder, and Stücklen with a single
blow’.58 For Arndt, who had been criticized within the party for conducting costly and dis-
tracting crusades in Karlsruhe, it was a sweet personal vindication.
The invalidation of a cherished Christian Democrat project—one that would have weak-
ened the opposition considerably in the upcoming election—was a major political victory
for the party as a whole. But the judgment marked a moral triumph as well. It shattered the
icon of the government’s constitutional infallibility. Willy Brandt noted gratefully that,
after the Television judgment, it was indisputable that government policy did not always
honour the constitution.59 It was a source of immense additional satisfaction that the judg-
ment not only quashed a government policy, it excoriated the manner of its adoption. SPD
politicians talked of the government’s ‘tactical unscrupulousness’ in conducting a ‘jungle
fight’ against which the Court had righteously inveighed.60
Opposition leaders at the state and local level were even more effusive. Paul Nevermann,
mayor of Hamburg, crowed that the chancellor had been returned to the path of legality.61

49  ‘Bestürzung in Bonn über das Urteil’ FAZ (1 March 1961) 4.

50  In Hermann Proebst, ‘Schlechte Verlierer’ Süddeutsche Zeitung (4–5 March 1961) 1, 2.
51  ‘Bonn Schweigt noch immer zum Fernseh-Urteil’ FAZ (2 March 1961) 1, 4. 52 ibid.
53 ibid 4. 54  ‘Scharfe CDU-Kritik am Fernsehurteil’ Süddeutsche Zeitung (8 March 1961) 2.
55 ibid. 56  ‘Bonn schweigt weiter zum Ausgang des Fernsehstreits’ Die Welt (2 March 1961) 1.
57  ‘Bonn schweigt noch immer zum Fernseh-Urteil’ FAZ (2 March 1961) 1, 4.
58 ‘Scherbengericht’ Der Spiegel (8 March 1961) 18.
59  In ‘Bestürzung in Bonn über das Urteil’ FAZ (1 March 1961) 4.
60  ‘Bonn schweigt weiter zum Ausgang des Fernsehstreits’ Die Welt (2 March 1961) 1.
61  In ‘Bestürzung in Bonn über das Urteil’ FAZ (1 March 1961) 4.
74 Confidence, 1959–1971

The Hessian minister president, Georg August Zinn, called the decision one of the most
important political and legal decisions since the Court’s inauguration.62 Zinn was confident
the judgment would forfend further federal efforts to undermine the competences of the
states.63 Even some Christian Democrat state officials were pleased. Peter Altmeier openly
praised the decision.64 Edo Osterloh, culture minister for Schleswig-Holstein, was more
cautious. ‘We must be able to acknowledge that we have lost a battle’, he noted. ‘That’s part
of a democracy. But we also mustn’t forget that the states too suffered a defeat in the Atomic
question through the decision made then in Karlsruhe’.65 Elsewhere, though, federalists
were more than willing to forget past defeats and revel in the present victory. The reaction
of the arch-federalist Bavarian Party was ebullient. ‘The defeat of the chancellor and the
interior ministry is complete’, burbled a party bulletin. ‘It is gratifying that federalism has
achieved a clear and convincing victory against the grim centralising tendencies of the
Bund’.66 In an alliterative paean, a writer in Die Welt exulted that ‘once more the flags of
federalism fly freshly in the wind’.67
Reactions in the press were largely approving and universally astonished. By common
consent, the judgment marked the most stupendous government defeat in the twelve-year
history of the Federal Republic.68 Journalists were as taken aback by the judgment’s style as
by its substance. That style reflected the acuity of Adolf Arndt, the case’s victorious advo-
cate, and the pugnacity of Willi Geiger, its judge rapporteur.69 Die Zeit perceived, and rel-
ished, ‘a certain severity in this judgment’s style’.70 The Süddeutsche Zeitung was taken
aback by the decision’s ‘surprisingly sharp formulations’.71 Die Welt noted that the Court’s
reprimand of government behaviour was ‘so massive that the objective observer must won-
der whether it was really necessary’.72 Even the Swiss Neue Zürcher Zeitung reported that
the chancellor’s ‘striking defeat’ was packaged in prose of ‘barely expected severity’.73 Der
Spiegel, as usual, was the bluntest of all: the substance of the judgment was contained in the
case headings; the sixty pages that followed were ‘merely punching the chancellor’.74
Some thought the style exaggerated and the substance plain wrong. Eberhard Blitzer
grumbled in the Frankfurter Allgemeine Zeitung that ‘one should question whether the con-
stitutional judges sought to orient themselves toward the constitution and the “objective
will of the lawgiver”’.75 Blitzer wondered further whether the Court’s ‘doctrinaire federal-
ism’ could accommodate current and imminent advances in technology.76 The framers of
the Basic Law, he noted, had never foreseen the emergence of television as a mass medium.
It was anachronistic for the Court to enforce strictly the constitution’s letter in the face of

62 ibid. 63  In ‘Das Echo aus den Landeshauptstädten’ Süddeutsche Zeitung (1 March 1961) 1, 2.
64  ‘Bonn reagiert zurückhaltend’ Die Welt (1 March 1961) 1.
65  ‘Um das Grundgesetz’ Süddeutsche Zeitung (3 March 1961) 2.
66  In ‘Das Echo aus den Landeshauptstädten’ Süddeutsche Zeitung (1 March 1961) 1, 2.
67  See, e.g., Bernt Conrad, ‘Föderalismus als Aufgabe’ Die Welt (7 March 1961) 1.
68  See Hans Reiser, ‘Nachdem Spruch von Karlsruhe’ Die Welt (1 March 1961) 1 (‘the worst domestic policy

defeat to date’); ‘Die Niederlage der Wesire’ Die Zeit (3 March 1961) (‘such a spectacular defeat’); ‘Pressestimmen
zum Fernseh-Urteil’ Süddeutsche Zeitung (2 March 1961) 2 (‘sensational defeat’); ‘Nach dem Dunkel Licht?’ Der
Spiegel (8 March 1961) 15 (the judgment was, for the CDU/CSU, ‘the worst blow their patriarch Adenauer had had
to endure since the founding of his state’).
69  That Geiger was the rapporteur is confirmed in Ernst Benda, ‘Ansprache anläβlich der Feierstunde des

Bundesverfassungsgerichts am 9.  November 1977 zur Verabschiedung von Bundesverfassungsrichter Prof.

Dr. Willi Geiger’ Bundesarchiv (Koblenz) (Nachlass Gerhard Leibholz, N 1334/299).
70  ‘Die Niederlage der Wesire’ Die Zeit (3 March 1961) 1.
71  ‘Verfassungsgericht entscheidet gegen Bonn—Zweites Fernsehen ist Ländersache’ Süddeutsche Zeitung (1

March 1961) 1.
72  Hans Reiser, ‘Nachdem Spruch von Karlsruhe’ Die Welt (1 March 1961) 1.
73  In ‘Pressestimmen zum Fernseh-Urteil’ Süddeutsche Zeitung (2 March 1961) 2.
74 ‘Scherbengericht’ Der Spiegel (8 March 1961) 15.
75  Eberhard Blitzer, ‘Das Urteil aus Karlsruhe’ FAZ (1 March 1961) 1. 76 ibid.
 Adenauer's Last Stand 75

manifestly changed circumstances. The judgment, Blitzer concluded, was methodologic-

ally questionable and practically dubious.
But Blitzer’s voice was lonely. Many journalists saw the judgment not only as a devastat-
ing political defeat for Adenauer, but as a kind of national civics lesson, an open essay in
democratic ethics. Hans Reiser (Die Welt) had technical reservations about the judgment,
but these were outweighed by gratitude for the judgment’s forceful insistence that politi-
cians respect the boundaries of the Basic Law. Reiser gave his analysis the sub-heading, ‘The
Basic Law is holy’.77 Die Zeit hailed the decision as a judgment ‘for democracy and against
the Bund’, one that ‘takes seriously the text, significance, and spirit of the Basic Law, wherein
the free shaping of opinion and will is protected and a federalist structure is guaranteed’.78
Ernst Müller Meiningen Jr (Süddeutsche Zeitung) was especially encomiastic. Meiningen
basked in the judgment’s ‘refreshingly clear talk’ and delighted in the ‘thoroughly bitter
lesson’ the justices had given the chancellor.79 ‘The Court’, Meiningen wrote, ‘has become
truly indispensable for the stability of our constitution—our constitution which not a few
politicians, God forbid!, would wrest under hand’.80
Other editorials defended the Court against its government critics. Hans Schuster wrote
that, of all the criticisms levelled at the Court’s decision, the strangest was that it was taking
the text of the Basic Law too seriously. In the face of constitutional amendments proposed
less than twenty-four hours after the decision, Schuster added, one wondered ‘why exactly
we have a Constitutional Court’.81 Hermann Proebst was even more bellicose, branding the
judgment’s critics as ‘sore losers’. In Proebst’s view, such criticisms suggested that consti-
tutional principles hadn’t yet entered the subconscious of the citizenry.82 It was profoundly
regrettable that, at the very moment when the judgment had strengthened foreign trust
in the strength of German democracy, domestic reactions to the judgment threatened to
undermine that trust. But there were ‘still judges in Karlsruhe’, Proebst concluded, ‘and we
have reason to be glad of this’.83
The judgment found a favourable reception in the foreign press as well. In Paris Le Figaro
affirmed that the decision was ‘in harmony with the West German Basic Law’ and saw in
it evidence that ‘the federalism planted in West Germany twelve years ago by the Allied
authorities had shot down deep roots’.84 In Switzerland, the Basler Nachrichten beamed
that, in a ‘happily harsh manner’, Adenauer had been restrained within the limits of the
law. ‘This judgment’, the paper predicted, ‘will significantly strengthen the world’s faith
in the German Rechtsstaat’. Unfortunately, the Swiss paper lamented, the West German
public was more concerned with the fate of the second television network than with this
triumph of constitutional democracy. But even in this matter the judgment would have a
felicitous effect: it would force West Germany’s politicians to step across party lines and
seek a compromise.85
As an emblem and culmination of the public’s engagement, Der Spiegel ran the judgment
as its 8 March 1961 cover story. The face of Chief Justice Gebhard Müller filled the maga-
zine’s cover, his eyes wide beneath thick-rimmed glasses, a thick cigar stub wedged between
his lips. He has the look of a stray, bewildered fawn gazing at the headlights of an oncoming
SUV—of a man caught unawares in the thick of a political whirlwind. For Der Spiegel, the
unmistakable lesson of the judgment was that ‘every judicial review of politics forces the

77  Hans Reiser, ‘Nachdem Spruch von Karlsruhe’ Die Welt (1 March 1961) 1.
78  ‘Die Niederlage der Wesire’ Die Zeit (3 March 1961).
79  Ernst Müller Meiningen Jr, ‘Eine Lektion für Bonn’ Süddeutsche Zeitung (1 March 1961) 1–2.
80 ibid 2. 81  Hans Schuster, ‘Hände weg vom Grundgesetz’ Süddeutsche Zeitung (2 March 1961) 1.
82  Hermann Proebst, ‘Schlechte Verlierer’ Süddeutsche Zeitung (4–5 March 1961) 1, 2. 83 ibid.
84  In ‘Pressestimmen zum Fernseh-Urteil’ Süddeutsche Zeitung (2 March 1961) 2. 85 ibid.
76 Confidence, 1959–1971

judges engaged in it—willingly or no—to engage in contemporary politics themselves’.86

In this respect, the Court had fulfilled Carl Schmitt’s 1931 prediction that constitutional
judicial review would lead to the politicization of law. But a lengthy survey of the Court’s
history suggested that this development might be less noxious than Schmitt feared. The
issue’s cover article characterized the judgment and its aftermath as a conflict between the
centre of power (Bonn) and the centre of law (Karlsruhe). The authors, and much of the West
German public, were grateful the latter had stood its ground against the former.

C.╇‘The judgment was wrong, ladies and gentleman’

The conflict, however, was only beginning. On 8 March 1961, the same day Der Spiegel ran
the Television judgment as its cover story, the Bundestag began its annual budget debate. At
this point a week had passed since the judgment was announced, and the official response
in Bonn had been conspicuously reticent.87 Only on 3 March did the government issue an
official statement, and then only to abandon its plan for a second network and to urge the
states to launch one as soon as possible.88 The official line was that cabinet officials wanted
time to study the opinion in detail. As the budget debate opened on the morning of 8 March,
Adenauer announced that the cabinet had analysed the decision, had discussed it as a group,
and were united in their assessment.
They were not pleased. ‘The cabinet were united’, Adenauer intoned, in their belief ‘that
the judgment of the Federal Constitution Court was wrong [falsch], ladies and gentlemen’.89
Some opposition delegates laughed in bemusement, and others roared in protest, at this
extraordinary declaration. Adenauer added grandly that the real loser in the case was the
West German people. ‘It is simply inconceivable’, he cried, ‘that we in the Federal Republic
should have television only on a regional basis’.90
This was an unprecedented public criticism of the Court, and it triggered a tremendous
parliamentary row. Fritz Erler, an opposition leader, fired back that ‘in countries with an
older democratic tradition, the government would have resigned after such a judgment’.
Indeed, ‘in countries with an older, more democratically grounded tradition, such behav-
ior on the part of the government would never even have taken place’.91 (In response, Will
Rasner, a Christian Democrat, asked how many constitutional cases the SPD had lost, and
how many SPD state premiers had resigned after the Atomic Plebiscite judgment.)92 The
Court’s judgment was a lingering theme throughout the first day of debate. It returned to
the fore, with greater intensity, on the second day.93
Gerhard Schröder described the decision as ‘fatal’, an appallingly anti-majoritarian
reversal of the difficult consolidation of the German Staatenbund (federation of states) into
a Bundesstaat (federal state).94 In Schröder’s view, the judgment dismantled the Weimar
Republic all over again. After reading the Court’s decision, and reviewing the lessons of
German history, it was a source of ‘angst and discomfort … to consider the German pre-
sent and the German future’.95 These words met with thunderous applause from the CDU

86╇‘Scherbengericht’ Der Spiegel (8 March 1961) 18.

87╇ See ‘Bonn schweigt weiter zum Ausgang des Fernsehstreits’ Die Welt (2 March 1961) 1; ‘Bonn Schweigt noch

immer zum Fernseh-Urteil’ FAZ (2 March 1961) 1, 4.

88╇ ‘Bonn gibt Fernsehpläne auf: Länderchefs beraten am 17. März’ Die Welt (4 March 1961) 1.
89╇ Verhandlungen des Deutschen Bundestages, Stenographische Berichte, vol 48 (1961) 8308.
90╇ibid 8309. 91╇ibid 8317. 92╇ ibid 8317–18.
93╇ ‘Schwere Zusammenstöβe zwischen SPD und CDU im Bundestag’ Die Welt (10 March 1961) 1.
94╇ ‘Schröder attackiert das Verfassungsgericht—Zweiter Tag der Haushaltsdebatte’ Süddeutsche Zeitung (10

March 1961) 1.
95╇ ‘Innenminister dankt dem Kanzler’ Die Welt (10 March 1961) 2.
 Adenauer's Last Stand 77

faction. Among the opposition, they met with anger and scorn. They set the tone for the
second day’s debate, which centred on Schröder’s ministry—frequently on the Television
judgment and its antecedents.
Friedrich Schäfer, the SPD floor manager, lambasted Schröder’s domestic policy, argu-
ing that the Television judgment itself, and Schröder’s response to it, exposed the interior
minister’s general contempt for the constitution.96 Gustav Heinemann contended similarly
that cabinet invective against the Television judgment reflected a broader disregard for
the constitution.97 The Court, said Heinemann, had produced a new ‘etiquette manual on
federal-state relations’.98 Heinemann also defended the Court as an institution. He cited a
long list of cases in which the Court had corrected federal law in fields where constitutional
principle had not penetrated popular consciousness. These included equal rights of men
and women, the equal standing of children born out of wedlock, the equal opportunity of
political parties, and occupational freedom. He then asked what the Republic would look
like without the Constitutional Court. ‘We would have state television’, he answered, ‘and
a state press would likely follow close behind’.99 Heinemann went so far as to accuse the
government of seeking to establish ‘state broadcasting worse than we had under the Third
Reich’.100 Only the Constitutional Court had spared the Republic that fate.
Heinemann wasn’t the only MP to make provocative parallels. When Schröder railed that
the Court’s use of the term ‘Cultural Sovereignty’ (Kulturhoheit) smacked of ‘Rabulistik’,
Adolf Arndt heard the hint of an anti-Semitic slur and said so loudly. After an intermis-
sion, Arndt said he was ready to recant if Schröder would do the same. As someone who
had been persecuted for twelve years because of his ‘race’, Arndt explained, and who had
seen relatives perish in death camps because of theirs, he hoped he could be excused for
being sensitive in the matter.101 But by the time Arndt gave this explanation Schröder had
left the hall. Arndt had enraged Schröder earlier with a barbed aphorism. ‘There is a differ-
ence between Karlsruhe and Bonn’, Arndt quipped. ‘In Karlsruhe you can’t substitute the
majority for the truth’.102 ‘With this comparison’, Schröder rejoined, ‘you utterly destroy
every foundation upon which we could discuss with you here’.103 At another point in the
debate, Arndt denounced the cabinet’s declaration that the Television judgment was wrong,
excoriating the chancellor’s statement as a rejection of the Basic Law, a gross impropriety,
and an impossible action.104 For their part, Union MPs insisted that freedom of expression
protected criticism of judges as well as of politicians. Rainer Barzel mocked Arndt’s preten-
tions of moral exhortation.105
Cabinet condemnation of the judgment provoked an immediate public backlash. The
Süddeutsche Zeitung denounced Adenauer’s ‘unheard-of accusation’. Not only had the gov-
ernment attempted an end run around the constitution with its unilateral creation of a
second network, the paper scolded; it sought now to discredit the Constitutional Court.106
Politicians, not all of them Social Democrats, rebuked the cabinet as well. The most

96  ‘Heftige Angriffe der Opposition gegen Innenminister Schröder’ FAZ (10 March 1961) 1, 4.
97  ‘Schröder attackiert das Verfassungsgericht—Zweiter Tag der Haushaltsdebatte’ Süddeutsche Zeitung
(10 March 1961) 1.
98  ‘Heftige Angriffe der Opposition gegen Innenminister Schröder’ FAZ (10 March 1961) 1, 4.
99  ‘Schröder attackiert das Verfassungsgericht—Zweiter Tag der Haushaltsdebatte’ Süddeutsche Zeitung

(10 March 1961) 1.

100  ‘Heftige Angriffe der Opposition gegen Innenminister Schröder’ FAZ (10 March 1961) 1, 4.
101 ibid.
102  ‘Schwere Zusammenstöβe zwischen SPD und CDU im Bundestag’ Die Welt (10 March 1961) 1.
103 ibid. 104  ‘Schäffer: Ich war bundesfreundlich’ Die Welt (10 March 1961) 2.
105  ‘Heftige Angriffe der Opposition gegen Innenminister Schröder’ FAZ (10 March 1961) 1, 4.
106  ‘Ein unerhörter Vorwurf’ Süddeutsche Zeitung (10 March 1961) 3.
78 Confidence, 1959–1971

deliciously ironic case was that of Thomas Dehler. Now a Bundestag vice president, Dehler
saw in the cabinet statements a shocking symptom of a grim development.107 Dehler huffed
that the federal government had no right to declare a Court judgment ‘ falsch’.108 (He didn’t
say whether cabinet members retained their ancient right to pronounce a judgment a ‘nul-
lum’.) Another FDP parliamentarian, Ewald Bucher, insisted that the chancellor couldn’t
simply call a decision ‘ falsch’ before the Bundestag. If Adenauer was really of this opinion,
he should take the consequences and resign. ‘In any case’, Bucher concluded, ‘he must not
cast doubt on the reputation of the highest German Court’.109
Controversy surrounding the Television judgment gave rise to an unprecedented spate
of public reflections on the Court’s role in the new German democracy. An editorial in
Die Welt noted that the judgment marked the definitive entry of the Court into ‘the arena’
of high politics.110 Citing Justice Leibholz’s assessment that ‘[t]‌he guardians of the con-
stitution are embedded in the integration process of our state and in the process of state
will formation itself’, the writer observed that although the notion might be unsatisfac-
tory in theory, it seemed to be working in practice. Fiery polemics about national rearma-
ment or regional plebiscites had all but disappeared, suggesting that Court decisions in
these matters had exerted ‘a great pacifying effect’. The intervention of judges in politi-
cal controversies, so unsettling to many citizens, had actually ‘proven especially salutary’.
‘Constitutional judges secure peace in the land’, but they also do more; their judgments are
‘educational’.111 Their commission was not merely to interpret the constitution, but to make
it more binding—presumably as a matter of national culture as well as of positive law. West
Germans should be pleased that the justices saw themselves as more than mere instruments
of legal positivism. ‘They feel themselves called to valuation [Wertung]’ as well. ‘We should
be glad they so understand their assignment. Their rallying cry, “That is not done!” [“Das tut
man nicht!”] reminds us of the moral foundations of our state’. Constitutional justice was
the antidote to modern Machiavellianism. The moral demands of the Television judgment
were sufficient rebuttal to any critic fearful of a Justitiardemokratie.112
Through all of this, the Court itself maintained a studied, Olympian silence. Officially,
the justices saw their Court as an apolitical body. Though their judgments might have pol-
itical consequences, they themselves would not enter the political fray. Only on the ides of
March, two weeks after the Court’s judgment and a week after the chancellor’s denunci-
ation, did the chief justice issue a formal statement. It read:
1. Everyone is free to assess decisions of the Federal Constitution Court critically or even to
think them wrong [falsch].
2. Under the order of the Basic Law, no constitutional organ is authorized to determine or
officially to express that a decision of the Federal Constitutional Court is not in accordance
with the law [entspreche nicht dem Recht].
3. The realm of objective criticism is left behind when it is insinuated of a court that its deci-
sions are influenced by resentment.113

Müller’s terse statement was legalistic and impersonal. It named no names, though its tar-
gets were unmistakable. It was carefully worded so that CDU politicians could plausibly

107 ibid.
108  ‘Heftige Reaktion auf Regierungskritik am Fernsehurteil’ Süddeutsche Zeitung (11/12 March 1961) 5.
109  ‘Adenauer: Das Fernseh-Urteil ist falsch’ Die Welt (9 March 1961) 2.
110  Gerhard E. Gründler, ‘Der Richter in der Arena’ Die Welt (10 March 1961) 1, 2. 111 ibid 2.
112 ibid.
113  In Heinz Laufer, Verfassungsgerichtsbarkeit und politischer Prozeβ. Studien zum Bundesverfassungsgericht

der Bundesrepublik Deutschland (Mohr Sierbeck 1968) 473.

 Adenauer's Last Stand 79

claim not to be affected by it—Adenauer, after all, had explicitly acknowledged that the
judgment was now the law.114 But the statement also warned firmly against any repetition of
the polemics of the previous two weeks. It was all the more forceful for having been issued
by a judge who until recently was a leading CDU state politician.
Christian Democrats insisted hotly that the statement did not apply to them; Social Democrats
retorted raucously that it did.115 The justices returned to Olympus and kept their peace.
The controversy soon quieted, though in the summer of 1961 the judges of the Second
Senate were briefly roused by rumours that a campaign was underway to solicit scholarly
criticism of the judgment and to bolster these criticisms with information about the private
lives of the participating justices.116 Adenauer assured the justices that their indignation
was unnecessary: the report had been fabricated by hyper-partisans hoping to discredit
scholars critical of the judgment.117
The chancellor himself had ceased to criticize the judgment publicly but privately it
remained a sore spot. He was anything but resigned to his defeat. Gebhard Müller later
recalled that at the Adenauers’ 1962 New Year’s reception, the chancellor asked the chief
justice whether the judgment couldn’t be modified so as to allow greater government
influence over broadcasting.118 But the Court did not revisit the matter during Adenauer’s
lifetime.
The overwhelmingly positive reception the Television judgment found among schol-
ars and journalists proved enduring. For the first time since its inception, the Court had
annulled a major initiative of Adenauer’s government. It had displayed its independence and
exercised its authority in a manner that underscored the centrality of constitutional justice
to the political order of the reconstructed German state.119 Here was a powerful voice speak-
ing truth to power, a judicial rebuke to executive overreaching. It was also a ringing affir-
mation of an independent, pluralist, and plurivocal public sphere, of more-than-formalist
understanding of democratic political culture.
In this last respect, the judgment and its aftermath highlight one of the Court’s most abid-
ing achievements during the Adenauer era. The Television judgment, more than any other
early decision, seemed to justify the view that the Court was a rampart of democracy, rather
than a restriction. It was a defining moment in the history of the Court, and in the life of the
young Republic.
It was in the afterglow of the Television judgment that the Court commemorated its tenth
anniversary—an anniversary that fell in September 1961 but, to avoid conflict with the
Bundestag election held the same month, was celebrated in January 1962. The Court was
honoured in the press with a sustained polyphony of praise.120 The keynote speaker at the

114 Verhandlungen des Deutschen Bundestages, Stenographische Berichte, vol 48 (1961) 8308.

115 See the reports in ‘Karlsruhe weist die politischen Organe in ihre Schranken’ Der Tagesspiegel (16 March
1961) 2; ‘Kritik am Fernsehurteil zurückgewiesen’ Stuttgarter Nachrichten (16 March 1961) 1; ‘Karlsruhe bricht
sein Schweigen’ Saarbrücker Zeitung (16 March 1961); ‘Arndt: CDU nach Fernsehurteil von allen guten Geistern
verlassen’ Frankfurter Rundschau (21 March 1961).
116  See Gebhard Müller to Konrad Adenauer, 30 June 1961, Landesarchiv Baden-Württemberg (Stuttgart)

(Nachlass Müller, Q 1135 Bü 716).

117  Adenauer to Müller, 17 July 1961, Landesarchiv Baden-Württemberg (Stuttgart) (Nachlass Müller, Q 1135

Bü 716).
118 Hans Bausch to Gebhard Müller, 23 November 1984, Landesarchiv Baden-Württemberg (Stuttgart)

(Nachlass Müller, Q 1135 Bü 705).

119 See Ralf Müller-Terpitz, ‘Fernseh-Urteil’ in Jӧrg Menzel (ed), Verfassungsrechtsprechung. Hundert

Entscheidungen des Bundesverfassungsgerichts in Retrospective, 1st edn. (Mohr Siebeck 2000) 126.

120  See, e.g., Kurt Becker, ‘Ein gelungenes Experiment’ Die Welt (25 January 1962); Wolfgang Stammberger,

‘Hüter der Grundrechte’ Bulletin des Presse- und Informationsamtes der Bundesregierung (27 January 1962) 157;
Rudolf Smend, ‘Zwanzig Richter hüten das Grundgesetz’ FAZ (14 February 1962).
80 Confidence, 1959–1971

Court’s official gala was Rudolf Smend, an intellectual mentor to many of the justices as
well as many of the Court’s most sympathetic commentators. ‘In the face of all contest of
opinions, in the face of all criticism’, said Smend, ‘the Federal Constitutional Court has
become a great Fact. The Basic Law now applies practically as the Federal Constitutional
Court construes it, and the literature discusses it in this sense’.121 During its first decade, the
Court established institutional independence and consolidated institutional power. With
the Television decision, the Court proclaimed its coming of age.

II.  The Party State

The Court’s Television judgment was not, as one historian contends, ‘the beginning of the
end’ of the Adenauer era.122 But it did accentuate and accelerate the chancellor’s decline. It
deprived the ruling party of a powerful pulpit in the federal elections of the coming autumn.
Those elections followed close on the heels of another series of events that damaged the
chancellor in the public eye: the construction of the Berlin Wall on 13 August 1961 and
Adenauer’s dilatory response to it. Adenauer was on holiday when the Wall went up, and his
public reaction to this astonishing turn of events was not the lion’s roar that many expected.
Only belatedly did the chancellor visit the embattled former capital. By contrast, Berlin’s
mayor, Willy Brandt (also the SPD candidate for chancellor), became a ubiquitous symbol
of the divided city, a front-line soldier and a popular hero.
The Mauerbau was a political calamity for the Adenauer government, and it came less
than forty days before a federal election. Many accused the chancellor of having never ser-
iously sought German reunification. Others charged that he cared nothing for the freedom
of the millions of Germans in the Soviet sector. Again, the contrast with Brandt was glar-
ing. Events in Berlin broadcast in bold relief the general juxtaposition of the campaign: the
tanned and telegenic Brandt beside the gaunt and aging Adenauer—engagement and
aloofness, energy and exhaustion, the new order and the old, the German Kennedy and
the German De Gaulle. The similarity of the parties’ policies and slogans (SPD: ‘Unsere
Sicherheit’ [our security]; CDU:  ‘Sicherheit’ [security]) could not hide—and perhaps
highlighted—the chasm between their commanding personalities.
The election returns attested that change was astir. The SPD’s share of the vote increased
by 4.4 per cent over 1957, and the party placed more members in the Bundestag than at
any time since 1949. The Union parties lost nearly 5 per cent of the vote—and with it their
absolute majority in Parliament. Adenauer remained chancellor, but just barely. He faced
intra-party opposition from those who wished to replace him with Erhard. The FDP agreed
to enter a coalition with the Union parties only in exchange for Adenauer’s promise to
resign before the end of 1963.

A. The Spiegel affair
His exit was hastened by dramatic events a little over a year later. On the night of Friday,
26 October 1962, federal and state police raided the headquarters of the Hamburg weekly
Der Spiegel, Germany’s most popular newspaper. Police arrested three editors, expelled
all remaining employees, and sealed off the building’s 117 rooms. They rifled through

121  Rudolf Smend, ‘Das Bundesverfassungsgericht’ in Rudolf Smend, Staatsrechtliche Abhandlungen und

andere Aufsӓtze, 2nd edn (Duncker and Humblot 1968) 581, 582.

122  Uwe Wesel, Der Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik

(Karl Blessing 2004) 111.

 The Party State 81

desks and documents, beginning a search that lasted four weeks. Initially, the main tar-
gets of the raid—Rudolf Augstein, the paper’s boss, and Conrad Ahlers, its military affairs
editor—were nowhere to be found. Police officers searched the two men’s homes and con-
fiscated their personal papers. By midnight, Augstein and Ahlers were still at large. When
word arrived that Ahlers was on holiday with his wife in Spain, Volkmar Kopf, state secre-
tary in the defence ministry, ordered his immediate arrest and extradition.
Officials in the ministries of justice and the interior demurred, raising legal scruples
about arresting Ahler on foreign soil for a political crime. Kopf waved these reservations
aside, informing federal police that the defence ministry would find a way to apprehend
Ahler itself if the police wouldn’t do it for them. Soon thereafter, Franz Josef Strauβ, the
defence minister, was on the phone with Colonel Ochim Oster, military attaché in Madrid.
Strauβ ordered Oster to arrange for Ahler’s arrest. Ahler and his wife were awakened in
their hotel room by Spanish police at 3:30 a.m. on the morning of Saturday, 27 October.
Within hours, they were on a plane back to Germany, where they were taken into cus-
tody. Before noon, Augstein, learning of the warrant for his arrest, turned himself in to the
Hamburg police. The West German public learned of these events in the headlines of the
Monday morning papers. The affair—with its night-time police raids and state interference
with a free press—had an eerie historical echo. It sparked the fiercest public controversy in
the thirteen-year history of the Federal Republic.
The raid and arrests responded to Der Spiegel’s cover story of 10 October 1962.123 The
piece described a NATO military ‘practice session’ conducted a few weeks earlier. The exer-
cise, dubbed ‘Fallex 62’, simulated the outbreak of a third world war triggered by a Soviet
atomic attack on Western Europe. The results, Der Spiegel reported, were damning. The
mock war was a catastrophe for the Federal Republic. It exposed military incompetence and
portended logistical bedlam. It appeared at a politically volatile time—six days before the
outbreak of the Cuban missile crisis, which ended two days after the Spiegel siege. The article
concluded with a savage critique of West German defence policy. It railed against atomic
armament and called for a robust reinforcement of conventional weapons.
It also called for the scalp of Franz Josef Strauβ. Rudolf Augstein had conducted a polem-
ical seven-year war against the defence minister—a war of intensifying venom and bile.
It was an enmity Strauβ reciprocated passionately. Initially, Strauss hotly denied playing
any role in the raids. But many suspected otherwise, supposing that Strauss was thirsting
for revenge. The SPD Bundestag faction unanimously demanded Strauss’s resignation. He
finally resigned on 30 November 1962, joining the five FPD members of Adenauer’s cabinet
who had resigned in protest. Adenauer was forced to reorganize his cabinet, and remained
at the head of the government only by promising to resign in October of the following year.
More staggering than the affair’s political fallout was its public clamour. Protestors,
many of them students, marched in every major city in the Federal Republic. Outraged
citizens, many of them intellectuals, sent fiery missives to politicians and angry editori-
als to newspapers. The press corps itself warmly backed Der Spiegel, loaning facilities and
staff to maintain the weekly’s run. The broader public was deeply divided—some shocked
by the open treason of a ‘nihilistic’ newspaper, others haunted by an irruption of enduring
authoritarianism at the centre of the German state.124

‘Bedingt abwehrbereit’ Der Spiegel (10 October 1962) 34.

123 

public reactions to the Spiegel affair, see Alfred Grosser, Thomas Ellwein, and Jürgen Seifert (eds),
124  On

Die Spiegel-Affäre. Die Reaktion der Öffentlichkeit (Walter 1966); Dorothee Liehr, Von der Aktion gegen den
Spiegel zur Spiegel-Affäre. Zur gesellschaftspolitischen Rolle der Intellektuellen (Peter Lang 2002); and David
Schoenbaum, The Spiegel Affair (Doubleday 1968) 151–74.
82 Confidence, 1959–1971

A symbolic epicentre of the debate was an exchange between two historians—Gerhard

Ritter and Karl Dietrich Bracher. In a letter to the Frankfurter Allgemeine Zeitung, Ritter
reproved his countrymen for having been so blinded by an eternal fixation with the horrors
of Hitler ‘that we would rather endure every abuse, however great, of the personal free-
doms guaranteed in the Rechtsstaat than one or another impropriety (or even mistake) by
our prosecutorial organs’.125 Bracher retorted that Ritter was advocating a ‘state ideology
that applies only from the top to the bottom’—that he was justifying ‘nothing less than
the calamitous traditional authoritarian state in Germany, to the cost of the democracy in
which we have just taken our first steps’.126 Ritter, a grand old man of German historiog-
raphy with ties to the 1944 plot against Hitler, was born in 1888, when Bismarck was still
chancellor. Bracher, the brilliant chronicler of the Weimaer Republic’s collapse, was born in
1922. The two men personified and articulated the generational gap that infused the Spiegel
affair. Rudolf Augstein, for his part, remained until 17 February 1963 in a jail cell, whence
he uttered black prophecies about the future of German democracy and fired a flurry of
complaints to the Federal Constitutional Court.

B.╇Interlude: ‘Shadows over Karlsruhe’?
The First Senate that answered Augstein’s complaints was very different from the Senate
that fielded them. By historical coincidence, Adenauer’s departure from the chancellorship
in 1963, hastened by the Spiegel affair, coincided with the first major changes in the Court’s
composition. Adenauer resigned as chancellor on 12 October 1963. Six weeks earlier, six
sitting justices left the Court—Erna Scheffler, Joachim Lehmann, and Martin Drath of the
First Senate; Egon Schunck, Walter Klaas, and Ernst Friesenhahn of the Second. All but
Schunck had been with the Court since its inception, and Schunck had joined the Court in
its second year. Two other founding justices—Gerhard Heiland of the First Senate, and Vice
President Rudolf Katz of the Second—had died within a month of one another in 1961. The
question of succession, complicated by a statutory reduction in the number of judges from
twenty to sixteen, proved more explosive than anyone anticipated.
When the dust settled, precisely half of the Court’s sixteen judges—three on the First
Senate, five on the Second—had been with the Court since its founding. Four had joined
the Court in its second decade. Friedrich Wagner, an SPD parliamentarian, had replaced
the sainted Rudolf Katz. Katz’s death occasioned an outpouring of public eulogies, many
of which celebrated the inaugural vice president as a symbol of all that was best about the
Court. Katz was praised as the warm-hearted cosmopolitan who held the Second Senate
together with humanity and charm, who defused internal conflicts with humility and wit.
Katz’s credo—‘When I don the red robe, I belong to no party’—made the rounds as an
emblem of the Court’s triumph over early accusations of partisanship. He was the fiery SPD
partisan who frequently led the Court in ruling against his former comrades.127

125╇Gerhard Ritter, ‘Blind für die Wirklichkeit’ FAZ (10 November 1962).

126╇Karl Dietrich Bracher, ‘Demokratie oder Obrigkeitsstaat’ FAZ (13 November 1962).
127╇For eulogistic obituaries of Katz, see especially ‘Rudolf Katz’ Der Spiegel (2 August 1961)  34; Hans

Rolf Zimmermann, ‘Richter ohne Furcht und Tadel’ Stuttgarter Zeitung (25 July 1961); and ‘Der Tod des
Vizepräsidenten des Bundesverfassungsgerichts ist für die Bundesrepublik ein herber Verlust’ FAZ (24 July
1961) 3. See also Vizepräsident Katz gestorben FAZ (24 July 1961) 1; ‘Vizepräsident Katz gestorben’ Deutsche
Zeitung (24 July 1961); ‘Rudolf Katz gestorben’ Süddeutsche Zeitung (24 July 1961); ‘BVG-Vizepräsident Dr. Katz
gestorben’ Badische Neuste Nachrichten (24 July 1961); ‘Trauer um Rudolf Katz’ Vorwärts (26 July 1961); ‘Rudolf
Katz gestorben’ Christ und Welt (28 July 1961).
 The Party State 83

His replacement had similarly strong ties to the party. An SPD member of the Weimar-era
Reichstag, Wagner, like Katz, had spent the Nazi era in exile—first in France, later in the
United States. Wagner sat on the Parliamentary Council, where he was instrumental in
abolishing the death penalty, and had been a member of the Bundestag since its founding in
1949. Wagner’s parliamentary activities had little to do with constitutional law. But though
his appointment caused some surprise it also met with broad approval.128 Justice Heiland
had a considerably lower profile than Rudolf Katz, the vice president, and his replacement
by Karl Haager, a judge in the Federal Court of Justice, drew little notice.
Much more controversial was the appointment of two new justices in the summer of 1963.
The statutory reduction in the number of justices, together with the end of some justices’
terms, left five vacancies—two to be filled by the Bundestag and three by the Bundesrat. As
expected, the Bundestag renewed, for an additional four years, the terms of Justice Leibholz
and Chief Justice Müller. The Bundesrat was expected to follow suit, filling the remaining
posts with three of the four justices—Walter Klaas, Hans Kutscher, Joachim Lehmann, and
Martin Drath—whose terms had expired but who were willing to remain in office. The
simplest solution would have been to reappoint the latter three, excluding Klaas on the inof-
fensive ground that he was, by some distance, the oldest of the four.129 But the CDU/CSU
faction of the Bundesrat appointments committee wished to reelect only Kutscher, filling
the two remaining slots with new judges. The committee’s SPD chairman, Hessian premier
Georg August Zinn, agreed. The SPD and Union factions picked one new justice each—the
latter Gregor Geller, a government lawyer and diplomat; the former Wiltraut Rupp-von
Brünneck, an attorney from Zinn’s own office.
The polemical explosion that attended this turn of events was detonated by a lawyer who
in the past had represented the state of Hessen before the Constitutional Court—Adolf
Arndt, now a culture senator in West Berlin. On 20 August 1963, Arndt published a fiery
philippic in his party’s Sozialdemokratischer Pressedienst.130 Under the title ‘Shadows over
Karlsruhe’, Arndt branded the appointments procedure as a scandal and blasted the Union
parties for ‘breaking solemn oaths’ and employing ‘malfeasant means’ to alter the partisan
composition of the Court. On the face of it, the appointments seemed utterly mundane. For
the five vacancies, two CDU nominees and one SPD nominee had been reelected and each
party had nominated one new justice. So the five vacancies were filled by three CDU nomi-
nees and two SPD nominees—a reasonable outcome, one would think, in light of the CDU’s
greater parliamentary representation.
But the picture looked different when one considered the composition of the individual
Senates. Four of the six departing justices had been SPD nominees. Three of these four had
sat on the First Senate. On the First Senate, then, three ‘SPD’ seats were vacated and only
one SPD seat filled. On the Second Senate, two CDU seats and one SPD seat were vacated,
with one CDU seat filled. The balance on the First Senate shifted from 5:5 to 5:3. The balance
on the Second Senate was also now 5:3, a shift from the previous distribution of 6:4.131 CDU
appointees now formed solid majorities in both chambers.

128  See, e.g., ‘Eine gute Wahl’ FAZ (16 December 1961); Walter Schallies, ‘Er half, die Todesstrafe abzuschaf-

fen’ Süddeutsche Zeitung (17 January 1962). See also Friedrich Karl Fromme, ‘Ein Anwalt auf dem Stuhl von
Katz’ FAZ (16 December 1961); ‘Friedrich Wilhelm Wagner wird Nachfolger von Rudolf Katz’ Vorwärts
(13 December 1961).
129  Klaas was 68, Drath 60, Lehmann 54, and Kutscher 51.
130  Adolf Arndt, ‘Schatten über Karlsruhe: Bundesverfassungsgericht—eine lästige Begrenzung der Macht?’

Sozialdemokratischer Pressedienst (19 August 1963) 2–7.

131  For a discussion of the shift, see Wesel (n 122) 97–107.
84 Confidence, 1959–1971

Arndt was apoplectic. So, apparently, were many of the justices, not all of them sympa-
thetic to Arndt’s politics. Justice Willi Geiger, for one, wrote to thank Arndt ‘fervently’ for
his article. ‘It was high time’, Geiger wrote, that someone spoke up about the ‘dubious cir-
cumstances of the most recent elections for the Federal Constitutional Court. I am relieved,
and I believe all members of the Court are relieved, that you have unburdened us of the
necessity’.132
And the solemn oaths, villainously violated? Arndt alleged that the SPD, fearing the very
CDU dual majority the 1963 appointments effected, had acquiesced in reducing the size of
the Senates only on condition that all sitting judges available for reelection would in fact
be reelected. The Union parties, Arndt accused, had reneged on that promise. Hitherto the
reelection of sitting judges had been a routine matter, accepted unquestioningly by both
parties. But now, through the ‘de-selection’ (Abwahl) of two SPD justices, the CDU had
flagrantly politicized the appointments process. Especially pernicious, in Arndt’s view, was
the non-election of Justice Martin Drath.
Drath was something of an SPD folk hero—a Weimar disciple of Hermann Heller and
a powerful postwar critic of Carl Schmitt. But as the Bundesrat appointments committee
began its deliberations, Josef Hartinger, a state secretary in the Bavarian justice ministry,
told the committee that Drath had planned an East German lecture tour, during which
he would hold a public conversation with a leading East German jurist, Karl Kaul, for-
merly defence counsel for the German Communist Party in the 1956 case for which Drath
served as rapporteur. It was also bruited that Gebhard Müller had privately rapped Drath
as lazy—that Müller wanted Drath off the Court, and that the chief justice’s party peers had
worked his will. Ousted from a Frankfurt professorship by Nazis in 1933, from a Jena pro-
fessorship by Stalinists in 1947, Drath had now been expelled for a third time in what Arndt
execrated as an act of high-court Gleichschaltung—a term associated with Nazi efforts fill
public offices with ideological purists.
Arndt’s essay rent a political fault line. The press reported his charges in luscious detail.133
The accused denied them with passionate zeal.134 If the changes in Court membership had
been driven by a nefarious Union conspiracy, CDU politicians and conservative journalists
asked, why had SPD state premiers agreed to the compromise?135 Even some sympathetic
to Arndt conceded that the Unionists a point. Georg August Zinn, for his part, roundly
rejected Arndt’s account of the proceedings. A reporter for the liberal Süddeutsche Zeitung
was convinced that Arndt had acted in good faith but admitted that Zinn had cooperated
in Drath’s ouster. It was unfortunate, though, that Arndt had unwittingly resurrected the
rhetoric, long silenced, of a Red Senate and a Black.136 Der Spiegel ran the story a few days
later under the headline ‘Rouge et Noir’.137

132  Willi Geiger to Adolf Arndt, 20 August 1963, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Adolf Arndt,

Box 6, Mappe 16).
133  See, e.g., ‘Arndt spricht von eimen Anschlag auf das Verfassungsgericht’ Der Tagesspiegel (20 August

1963); ‘Arndt: Anschlag auf das Bundesverfassungsgericht’ Süddeutsche Zeitung (20 August 1963) 4; Volkmar
Hoffmann, ‘SPD enthüllt CDU-Anschläge auf Verfassungsgericht’ Frankfurter Rundschau (20 August 1963);
‘Scharfe Angriffe Arndts gegen Bonn’ Die Welt (20 August 1963); ‘Arndt um das Bundesverfassungsgericht
besorgt’ Stuttgarter Zeitung (20 August 1963); ‘Arndt und das Verfassungsgericht’ Süddeutsche Zeitung
(20 August 1963). The essay even drew international press coverage. See ‘Move to “Pack” German Court Alleged’
Times of London (23 August 1963).
134  See ‘Kopfschütteln und Empörung über Arndt’ Stuttgarter Zeitung (21 August 1963); Volkmar Hoffmann,

‘Union weist Angriff Arndts zurück’ Frankfurter Rundschau (21 Aug 1963); ‘Scharfe CDU-Antwort an Arndt’
Der Tagesspiegel (21 August 1963); ‘CDU: Arndts Darstellung bösartig’ Süddeutsche Zeitung (21 August 1963).
135  See, e.g., ‘Neue CDU-Kritik an Kultursenator Arndt’ FAZ (23 August 1963).
136  ‘Arndts allzu scharfer Schuβ’ Süddeutsche Zeitung (24 August 1963) 3.
137  ‘Verfassungsrichter: Rouge et noir’ Der Spiegel (28 August 1963) 18.
 The Party State 85

Ironically, the Court’s historical refutation of such labels had helped persuade Zinn to cut
a deal. Zinn was a frequent party before the Court, and his SPD state government had done
no better before the First Second than before the Second. In the Atomic Plebiscite case, the
‘Black’ Second Senate had handed Zinn his greatest defeat; in the Television judgment, his
greatest victory. In many cases Zinn was willing to buck the federal party brass in matters
of constitutional politics. Zinn was likely more interested in placing one of his own on the
First Senate than with preventing a presumptive ‘CDU majority’.
Drath, for his part, was devasted; Arndt, temporarily, became something of a pariah.
They consoled one another in a series of poignant personal letters, addressed in the com-
radely ‘Du’, and wrote agonized editorials in Die Zeit.138 Privately, Drath heaped wrathful
scorn on the head of Müller, whose slur that Drath was lazy had led, Drath was sure, to the
latter’s non-election. Drath thundered that the chief justice was ignorant of the law and
unprepared for his post. Müller was as weak as he was fickle—he told everyone what they
wished to hear and kept his real convictions (if he had any) to himself. The best Drath could
say for Müller was that he was an efficient administrator—but how hard was it to administer
a body of 100 people? Müller was so disliked by the other justices, Drath gossiped, that one
of them had amended his will to prevent Müller from speaking over his grave.139
These were the recriminations of a deeply wounded man. Drath was particularly hurt to
leave the Court amid accusations that he nurtured sympathetic ties to the East—Drath who
had fled from the GDR; who had skewered its constitutional pretensions in pamphlets pub-
lished by a government ministry; who had faced journalistic abuse and physical threats140 in
the aftermath of the KPD judgment.141 It was some solace, at the end of November, when the
Court’s official spokesman dismissed the charges against Drath as ‘wholly ungrounded’,
and in December, when the Court held a ceremony in Drath’s honour—a ceremony to
which Drath was invited in a personal note from Gebhard Müller.142 Charges that Drath
sympathized with the East were certainly false. On questions of Cold War politics, there
was no question where the justice stood. In the aftermath of the Spiegel affair, to cite just
one example, Drath had written an effusively supportive letter to Franz Josef Strauβ.143
Ironically, the alleged victim of a CDU conspiracy might well have voted for Strauβ in the
celebrated Spiegel case that was working its way through the courts.

C. The Spiegel judgment

Whether Drath’s solidarity with Strauβ would have translated into a vote against Augstein’s
complaints will never be known. By the time the First Senate reached the merits of those
complaints, Drath was three years into an involuntary retirement.
The legal aftermath of the Spiegel affair was long. Prosecution against Augstein, his fel-
low editors, and the ‘Fallex’ article’s main informant, Colonel Alfred Martin of the defence
ministry, moved slowly. Federal prosecutors struggled to prove that the article was in fact
treasonous. The Federal Court of Justice, losing patience, dismissed the charges against

138 See Martin Drath, ‘Zwischen Grundgesetz und Politik’ Die Zeit (30 August 1963)  3; Adolf Arndt,

‘Leserbrief’ Die Zeit (18 October 1963). Drath also made a confidant of SPD national chairman, Willy Brandt. See
Drath to Willy Brandt, 7 September 1963, BAK N 1341/34.
139  Martin Drath to Adolf Arndt, undated (probably September 1963), BAK N 1341/59.
140  See, e.g., K.H. Hüttenrauch to Drath, 16 August 1956, BAK N1341/59 (Nachlass Martin Drath).
141  Martin Drath to Adolf Arndt, undated, circa September 1963, BAK N 1341/59 (Nachlass Drath).
142  ‘Verlautbarung der Pressestelle des Bundesverfassungsgerichts’ (29 November 1963), BAK N 1341/59

(Nachlass Drath); Gebhard Müller to Martin Drath, undated, BAK N 1341/59 (Nachlass Drath).
143  Martin Drath to Franz Josef Strauss (19 November 1962), BAK N 1341/59 (Nachlass Drath).
86 Confidence, 1959–1971

Augstein and Ahlers in May 1965.144 Over the next three months, the Court of Justice dis-
missed the charges against all other defendants save Martin. Charges against Martin weren’t
dropped until October 1966—shortly after the First Senate of the Constitutional Court had
finally responded to the magazine’s constitutional complaints.
Represented by two of the ablest lawyers in the land—Horst Ehmke, the future justice minis-
ter, and Fabian von Schlabrendorff, a future justice of the Constitutional Court—the complain-
ants argued that the ministers who instigated, the judges who approved, and the police who
executed the search warrant had violated their constitutional rights to the freedom of the press
(Article 5), the sanctity of property (Article 14), and the inviolability of the home (Article 13).
Oral arguments held in January 1966 revealed sharp fissures, but no purely partisan
divide, within the First Senate. Justice Herbert Scholtissek, the case’s rapporteur, was a vocal
libertarian in free speech matters. In contrast, Chief Justice Müller, the Senate’s chairman,
took an expansive view of the state’s power to restrict speech on security grounds. Both
were quondam CDU politicians, as was Justice Erwin Stein, another extrajudicial paladin
of civil liberties. Close observers assumed Stein and Scholtissek would be joined by two
SPD nominees, Wiltraut Rupp-von Brünneck and Hugo Berger, in sustaining Der Spiegel’s
complaints. A third SPD nominee, Justice Karl Haager, was expected to vote for the govern-
ment. The views of Justices Theodor Ritterspach and Werner Böhmer remained a mystery.
The outcome, presumably, would depend on them.145
After oral argument, the Court deliberated for seven months before issuing a decision. Its
published opinion of 5 August 1966 astonished everyone.146 Ritterspach and Böhmer joined
Müller and Haager in sustaining the constitutionality of the search warrant and subsequent
investigation. As expected, Scholtissek, Berger, Rupp-von Brünneck, and Stein supported
the newspaper. Under the Court’s rules, a 4:4 split went against the party alleging a consti-
tutional violation—in this case against Der Spiegel. The result of the tie was a government
victory—a confirmation that the warrant and the search were constitutional.
Normally, in the case of a 4:4 vote, the Court merely announced the outcome without
publishing an opinion. Here, however, the stakes were too high, and the Senate too polar-
ized, for a perfunctory per curiam. The Court published a long opinion with an historic
dissenting opinion—the first officially published dissent in the history of German law.147
It was a dissent, however, that dared not speak the name. Nor did it name its authors.
Contrary to the Anglo-American practice of publishing a majority opinion, followed sep-
arately by any concurrences or dissents, the Constitutional Court integrated the views of
the dissenters into a single, impersonal judgment of the Court. The judgment, moreover,
didn’t speak of ‘the dissenters’ or ‘the majority’ (the latter would have been an affront to
arithmetic), but simply of the view that prevailed and the view that did not.
The opinion began by enunciating principles in which all the justices concurred; it then
set forth the views of the dissenting and the prevailing justices, where these differed, in dia-
logic juxtaposition.148

144  In (1965) 29 NJW 1187.

145  On predictions about the Senate’s votes, see Donald Kommers, ‘The Spiegel Affair: A Case Study in Judicial
Politics’ in Theodore L. Becker (ed), Political Trials (Bobbs-Merrill 1971) 28. The entire article is an excellent
introduction to the legal aspects of the Spiegel affair.
146  20 BVerfGE 162 (1966).
147  Willi Geiger, as we saw in Chapter 1, privately published a dissent to the Plenum’s procedural decision

in the European Defense Community case. Geiger wrote dissents with modest frequency before they became
official Court procedure in 1971. He published some of them after his retirement. See Willi Geiger, Abweichende
Meinungen zu Entscheidungen des Bundesverfassungs-gerichts (Mohr Siebeck 1989).
148  So, e.g., the views of the dissenters appeared in 20 BVerfGE 162 (n 146) 178–85, 191–209, and 223–26, while

those of the prevailing justices appeared in ibid 185–91, 209–22, and 226–30. The dissenters actually took more
space, at twenty-eight pages, than the prevailing justices, at twenty-three.
 The Party State 87

All the justices agreed that the treason paragraphs of the penal code were not, on the
face of it, unconstitutional. All stressed, too, that a free and fearless press was the sine qua
non of a democratic state.149 The Court rejected unanimously the view that security inter-
ests trumped freedom of the press because the existence of the state is a precondition of a
free press. The operation of a free press was just as necessary to the existence of the state as
was the preservation of military secrets. The competing claims of state security and press
freedom could not be assessed in the abstract. They must be balanced concretely in accord-
ance with what had become an increasingly familiar doctrinal formula: the principle of
proportionality.
General laws, the justices wrote, could limit, but not relativize, press freedom. Such lim-
its, moreover, must secure a legal good of equal or greater value.150 Courts must weigh the
dangers to which a given publication might expose the country against the public’s right to
be informed of important events, even in the field of defence policy.151 It was in conducting
this balancing act that the Senate’s factions parted paths.
In the dissenters’ view, the judge issuing the warrant and the investigators carrying it
out hadn’t merely mistaken the balance between national security and press freedom; they
hadn’t balanced at all.152 They hadn’t even asked whether the offending article actually
revealed state secrets. They had simply taken the defence ministry’s word for it. This, in
the dissenters’ view, was constitutionally inadequate. The ‘mosaic theory’ put forth by the
defence ministry—according to which the assembly and collation of scattered scraps of
public knowledge might amount to disclosure of state secrets—was unconstitutional as well
as unpersuasive. It was the very business of the press—one of its raisons d’être—to assemble,
arrange, assess, and publish newsworthy information.153 To make this treason would oblit-
erate the constitutional guarantee of a free press.
The search of Spiegel headquarters, the dissenters found, flunked the proportionality test
from beginning to end. Its contribution to national security was dubious—the article had
already been published; and an experienced paper like Der Spiegel was unlikely to have
kept on hand the sensitive documents on which the article’s authors relied.154 On the other
hand, the search’s intrusion on press freedom was colossal. It threatened to destroy the
nation’s premiere critical news organ—to block its publication in the short run and to crush
it financially in the long run. That the voluntary intercession of other papers prevented this
outcome had no bearing on the constitutional question. The search also threatened the
paper’s ties with all its sources and threatened to make all journalists jittery about covering
defence policy.155 The search was sweeping beyond anything rationally commensurate with
its ostensible scope.156 That scope, in any case, was unconstitutionally imprecise.157 In sum,
the search’s likely benefit to state security was slight, its threat to press freedom systemic.
The prevailing justices saw things differently. They too, applied the proportionality prin-
ciple, but did so with a great deal of deference. In their view, the ‘mosaic’ theory had not been
decisive in the decision to search Spiegel headquarters.158 Prosecutors had simply taken the
defence ministry’s advisory opinion at its word, and the prevailing justices were willing to
do the same. The question was not whether that opinion was accurate in all particulars but
whether it sufficed to justify the search. The prevailing justices were convinced that it did.
They also saw the search itself as self-evidently suited to uncover the evidence it sought. The
procedure may have been flawed, but not fatally so. The order was imprecise, but not uncon-
stitutional. Greater precision was probably impossible. Existing statutory protections for

149 20 BVerfGE 162 (n 146) 174. 150 ibid 177 (referencing 7 BVerfGE 198, 208 (1958) (Lüth)).
151 ibid 178. 152 ibid 198. 153 ibid 180–82. 154  ibid 204–05. 155 ibid 200.
156 ibid 199. 157 ibid 226. 158 ibid 186.
88 Confidence, 1959–1971

editorial secrecy left something to be desired, but it was not the Court’s job to fill the void.
In any case, protections for editorial secrecy exist, not for the sake of individual editors and
informants, but to promote the functionality of the press as a whole.159
The prevailing justices also qualified the united Senate’s comments on press freedom. ‘In
criminal proceedings’, the foursome noted, ‘the press enjoys no privileges’.160 In sensitive
matters, the press itself was duty-bound to balance the public’s need for information against
the demands of state security. Journalists couldn’t evade this responsibility by invoking the
freedom of the press.161 The ‘permissive view of journalistic freedom’ urged by Der Spiegel
would have ‘negative consequences for the credibility of the Federal Republic within an
integrated alliance like NATO, whose other members, though their legal systems largely
derive from the same intellectual tradition, consider a far more intensive protection of mili-
tary secrets to be self-evident’.162 This was a thinly-veiled jab at the siege’s foreign critics. In
the view of the prevailing foursome, the warrant and the search—and all official decisions
surrounding them—were constitutional.
Public response to the judgment was as divided as the decision itself. Many assessments
were gloomy. The Süddeutsche Zeitung characterized the decision as a setback, not alone for
Der Spiegel, but for ‘democracy and the rule of law’.163 If what happened at Spiegel headquar-
ters was ‘not a flagrant attack on the constitutional guarantee of a free press, our name is
Hopf, or Strauss, or Adenauer’. Hans Gerlach of the Kölner Stadt Anzeiger professed himself
perplexed and appalled ‘that four judges of our country’s most important court, after all the
failures, all the errors and crimes that German authorities have committed in this century
(all of which [the judges] themselves have experienced), can still believe so unshakably in
the justice and wisdom of those who govern us’. Die Weltwoche saw in the judgment an
authoritarian spirit parading in democratic garb. The Münchner Merkur lamented that the
judgment had resolved nothing. After the jurisprudential fog of the lengthy judgment lifted,
what remained was ‘the depressing feeling that the supreme constitutional tribunal was
manifestly incapable of adding clarity to … the all-decisive question—namely, to decide
once and for all which takes precedence, raison d’état or the freedom of the press’. The
Passauer Neue Presse added that ‘[w]‌hoever didn’t yet realize that the Federal Constitutional
Court is a political rather than a judicial body’ should by now be ‘permanently disabused’.
Others were more ambivalent. Rudolf Augstein himself merely took the liberty of adorn-
ing ‘several of the Court’s findings … with a question mark’.164 Some were even sanguine.
For many, the forcefulness of the dissent made the case’s formal outcome almost irrelevant.
‘As an attorney, I would naturally have preferred a 5-3 “victory”’, said Spiegel advocate Horst
Ehmke. ‘But legally and politically this decision is much nicer. With 5-3 we would have had
a typical compromise decision’.165 An editorial in Die Welt reported that the most lasting
impression of the long judgment was not the diffident caution of the prevailing judges but
the angry certitude of the dissenters. ‘Through every line of the opinion’, Die Welt reported,
‘there flashes the lightning wrath of opposition’.166 The Frankfurter Allgemeine Zeitung
considered the judgment’s internal contradictions ‘one of its happier sides’. It largely left
government lawyers and criminal judges in the dark as to how the Constitutional Court
would rule in future cases of controversial investigation. This uncertainty, the FAZ writer
felt, suggested a salutary rule of thumb: criminal authorities would ‘do best, in taking steps

159 ibid 221. 160 ibid 212. 161  ibid 214–15. 162 ibid 221.

163  The citations that follow in this paragraph are all collected in ‘Der Zorn des Widerspruchs’ Der Spiegel
(15 August 1966) 9.
164  Rudolf Augstein, ‘Lieber Spiegelleser’ Der Spiegel (8 August 1966) 3.
165  In Schoenbaum (n 124) 216.
166  In ‘Der Zorn des Widerspruchs’ Der Spiegel (15 August 1966) 9.
 The Party State 89

against organs of the press, to act in such a way as to withstand the legal scrutiny’ of the dis-
senters. Die Zeit hoped the judgment would make future investigators skeptical of ‘yielding
to whispers from the executive and Gutachten from the “official authorities”’.167 For Der
Tagesspiegel, whatever the legal outcome of the case, its political meaning was clear: ‘Doubts
about the constitutionality of the ‘Spiegel-Action’ were justified and remain in force’.168
There can be no doubt that the publication of the dissenters’ views helped mute what
might otherwise have been vehement criticism of the judgment. A  Tübingen colleague
wrote to Justice Gerhard Leibholz that ‘it must be clear after the Spiegel judgment that the
publication of dissenting votes has always been unjustly execrated; for here the publica-
tion of the dissent has had a clearly balancing and pacifying effect’.169 It also helped create
within the Court what the raids on Der Spiegel had been accused of denying to the Federal
Republic—an atmosphere of fearless debate with all arguments open to public scrutiny.
Since the Court’s inception, reformers had championed the introduction of formal
dissents.170 Within the Court itself, Justice Willi Geiger had proposed introducing dissents
at a plenary meeting of both chambers in April 1952. Geiger had been merrily circulat-
ing dissents ever since.171 Traditionalists like Müller worried that published dissents would
diminish the Court’s authority. Advocates of dissenting opinions answered that the Court’s
authority depended on other factors entirely—the persuasiveness of its opinions, for exam-
ple, or the prudence of its political interventions. What was at risk was not the Court’s
authority but an authoritarian and antiquated judicial structure. Champions insisted that
dissents would make the Court more democratic. If the Court was to decide boiling politi-
cal matters on which public opinion was sharply divided, the public had a right to learn of
divisions within the Court itself. If at no other level of the judiciary, dissents ought to be
introduced at the constitutional level.
Still, dissents posed problems. Justices appointed to the Court from within the federal
judiciary enjoyed lifetime tenure, but other justices served renewable terms of four or eight
years. Many worried that the ‘term’ judges would consider the consequences that dissent-
ing (or not) in a given case might have on their odds for reelection. Dissents, the argument
ran, would undermine the independence of ‘term’ judges and put them at a disadvantage
vis-à-vis their ‘life’ colleagues.172 Traditionalists, again including the chief justice, also fret-
ted that dissenting opinions, enjoying an air of novelty and rebellion, would receive more
attention in the press than the judgment of the Court. This fear, as experience would show,
was well founded.
Meanwhile, an increasing number of Müller’s colleagues came to favour dissents.173
This attitude, however, was not general within the German judiciary. In an official 1968

167 ibid. 168 ibid.
169 
Dieter Dirk-Hartmann to Gerhard Leibholz, 7 August 1966, BAK N 1334/1 (Nachlass Gerhard Leibholz).
170  On dissents on the Court generally, see Gerd Roellecke, ‘Sondervoten’ in Peter Badura and Horst Dreier

(eds), Festschrift 50 Jahre Bundesverfassungsgericht, vol 1 (Mohr Siebeck 2001) 363.

171  See Ernst Benda, ‘Ansprache anläβlich der Feierstunde des Bundesverfassungsgerichts am 9. November

1977 zur Verabschiedung von Bundesverfassungsrichter Prof. Dr. Willi Geiger’, BAK N 1334/299 (Nachlass
Leibholz).
172  To assuage this fear, reformers proposed introducing dissents alongside a single, non-renewable term—a

proposal ultimately embraced in the reform legislation passed in 1970.

173  Hans Rupp, who studied at Harvard and knew American law well, was a particularly strong supporter. See

the report in ‘Verfassungsrichter Rupp 60’ FAZ (30 August 1967). Vice President Wagner, in his 1968 farewell
message to the Court, also called for dissents. ‘Bundesverfassungsgericht: Personen und Probleme’ Badische
Neueste Nachrichten (12 January 1968) 8. For summaries of public debates about dissents, see Friedrich Karl
Fromme, ‘Gleiche Zeit für alle Verfassungsrichter’ FAZ (11 October 1967); Ernst Müller-Meiningen Jr, ‘Des
Richters abweichende Meinung’ Süddeutsche Zeitung (14/15 August 1968) 4; Friedrich Karl Fromme, ‘Richter
mit Namen’ FAZ (12 September 1968).
90 Confidence, 1959–1971

survey conducted by the justice ministry, 158 of 235 responding judges from the other fed-
eral courts opposed dissents.174 The judges feared that dissents would undermine judicial
authority, flout tradition, and disturb the legal peace (Rechtsfrieden).
Such sensibilities were increasingly at odds with those of a public that, since the Spiegel
affair, increasingly prized plurivocality. Accordingly, the Constitutional Court won plau-
dits for bucking the trend. Beginning in 1967, the Second Senate regularly announced the
tally of its internal votes. Beginning in 1971, the Court’s organic statute permitted pub-
lished dissents. The Court’s distance in this and other matters from the rest of the judiciary
strengthened the public’s esteem for the Court. Throughout the 1960s, the judiciary at large
was criticized with increasing volume for its authoritarian ethos and inadequate rupture
with the Nazi past. At the beginning of the decade, a prominent public exhibition drew
attention to continuities with the Third Reich judiciary.175 It was held—with equal parts
aptness and irony—in Karlsruhe.176
On the same day the First Senate issued its split judgment in the Spiegel case, it also issued
an uncontroversial judgment that trumpeted the constitution’s commitment to a demo-
cratic public sphere and reaffirmed its rejection of authoritarian modes of thought.177 At
issue was a holdover public assembly law passed in 1934, amended in 1941, and still on the
books in several states. The law required police to approve, and allowed them to supervise,
public gatherings. The law gave administrators discretion to deny permits or direct surveil-
lance. Under the Basic Law, police administration fell under state jurisdiction, so the law
could not be repealed at the federal level. The Bundestag asked the Court to nix the law in
their behalf. The Court obliged.
The law, the First Senate held, ran afoul of a host of constitutional provisions. Most
fatally, though, it bore the burden of its authorship and the stain of its birth date. ‘The Public
Assembly Law’, the Senate wrote, ‘stems from the administrative thought of the totalitarian
state’.178 It came from a time when state interests trumped personal freedoms; when public
rights were ascendant and constitutional rights moribund; when law was a tool in the hands
of power. This was the thought that underlay the public assembly law, which authorized
administrators to act arbitrarily. But times had changed radically. Not even the canon of
constitutional construction—which directed the Court, whenever possible, to interpret a
law in a manner that preserved its constitutionality—could rescue the law. The Senate pro-
claimed it null and void. Naturally, the Public Assembly judgment was overshadowed by the
Spiegel decision of the same day. But as a public relations matter, it didn’t hurt that the Court
reaffirmed its role as guardian of fundamental rights and guarantor of the public sphere on
the very day when another, more contested decision led some to question these roles.

D.╇Party finance in the party state

The Spiegel judgment revealed a Court every bit as divided on an existential question of
national identity as was the public at large. Seventeen days before the First Senate issued its
Spiegel judgment, a similarly divided Second Senate decided a case of greater immediate
political importance—a case raising core questions about the nature of the West German

174╇ Ernst Müller-Meiningen Jr, ‘Wenig Meinung für “abweichende Meinungen”’ Süddeutsche Zeitung (28 Aug

1968) 4; ‘Abweichende Meinung: Aus der Amtstube’ Der Spiegel (23 September 1968) 70.
175╇ Reinhard Strecker was the designer of the display, which he titled ‘Unredeemed Nazi Justice’ (Ungesühnte

Nazijustiz).
176╇ For a discussion of 1960s debates on judicial reform, see Jörg Requate, ‘Standespolitik als GesellschaftÂ�

spolitik. Zur Debatte um den Reformbedarf der Justiz in der 60er Jahren’ in Dynamische Zeiten (n 13) 424–43.
177╇ 20 BVerfGE 150 (1966). 178╇ibid 160.
 The Party State 91

state, the role of political parties within that state, and the relationship of parties to the
public sphere. It was the Court’s second foray into the prickly pasture of party finance.179
In 1958, the Court invalidated a tax deduction for contributions to political parties as
incompatible with the equality principle.180 An unusual dictum in that decision suggested
the state might subsidize parties directly, clearly indicating, most thought, that such sub-
sidies would be constitutional.181 Article 21(1) GG, the Court noted, acknowledged the role
of parties in shaping popular will. Popular will was expressed preeminently through par-
liamentary elections, in which political parties played a decisive role. Since the sponsoring
of elections was an essential state duty, ‘it must be permissible for the state to make finan-
cial means available, not only for the elections themselves, but for the parties who conduct
them’.182 The parties soon took the hint. The SPD, with its broad dues-paying membership,
was little affected by the 1958 decision. But the CDU and FDP struggled to stay afloat finan-
cially.183 They grasped the Court’s suggestion eagerly. For the 1959 federal budget the CDU
proposed an outlay of 5 million DM, to be divided among the major parties commensurate
with their parliamentary strength. From year to year, the sum soared. By 1965, outlays to
parties had ballooned to 38 million DM—one Mark, roughly, for every voter in the Federal
Republic.
From the beginning, state funding had loud critics. Theodor Eschenburg called the
scheme feudalistic. Parties, like medieval landlords, not only administered the country
but could now extract its resources.184 Critics were skeptical of the programme’s osten-
sible justification—that parties played a constitutionally mandated role in shaping, or
‘educating’,185 popular political will. ‘Advertising’, said Dolf Stenberger, ‘is not education’.186
Karl Jaspers was even more scornful. ‘One can hardly maintain’, Jaspers wrote, ‘that in the
Federal Republic an education of the people’s political will takes place. The ignorance of
most is frighteningly great. Parties do not inform or educate the people, and they do not
train it to think’.187 If the premise of public party financing was dubious, Jaspers continued,
its implications were ominous. State financing of parties was, in Jaspers’ view, only the lat-
est manifestation of the Federal Republic’s transformation from a democracy to a ‘party
oligarchy’—a system in which parties in power consume public funds to remain in power;
in which no authentic opposition could emerge, either in Parliament or at the grassroots;
in which elections were an open sham, a mere ‘acclamation of the party oligarchy’. In its
essence, party oligarchy meant ‘contempt for the people’, an ‘inclination to withhold infor-
mation from the people’, a desire to exclude the people from popular participation, a prefer-
ence ‘to leave them stupid’.188 From a ‘party state’, the Federal Republic had degenerated into
a party oligarchy. In light of proposed legislation for an ‘emergency constitution’, Jaspers
warned, it risked a second step—‘from party oligarchy to dictatorship’.189
Though Jaspers didn’t say so, the theorist who had proclaimed most forcefully that
the Federal Republic was a ‘party state’ was Gerhard Leibholz of the Constitutional
Court’s Second Senate. In prolific academic tracts, Leibholz distinguished between two
brands of democracy, which he termed ‘parliamentary representative democracy’ and

179 For an excellent contemporary introduction to the controversy, see Donald Kommers, ‘Politics and

Jurisprudence in West Germany: State Financing of Political Parties’ (1971) 16 Am J Juris 215.

180  8 BVerfGE 51 (1958). 181 ibid 62–63. 182 ibid 63.
183 See Karl-Heinz Adams, Parteienfinanzierung in Deutschland. Entwicklung der Einnahmestrukturen

politischer Parteien oder eine Sittengeschichte über Parteien, Geld und Macht (Tectum 2005) 112.
184  Theodor Eschenburg, Herrschaft der Verbände (Deutsche Verlags-Anstat 1956) 65.
185  The redolent term Bildung suggests both meanings.
186  ‘Werbung ist nicht Bildung’ FAZ (3 August 1959) 1.
187  Karl Jaspers, Wohin treibt die Bundesrepublik? Tatsachen, Gefahren, Chancen (Piper 1966) 130.
188  ibid 131–40. 189 ibid 141.
92 Confidence, 1959–1971

‘parliamentary political mass democracy’. The former corresponded to the classical model
of nineteenth-century liberalism—a system of suffrage and representation, individual
(mainly economic) rights, and the distinction between state and society. The latter sys-
tem, which Leibholz took to be the only workable model for the twentieth century, was
more plebiscitary; it was based on universal suffrage and aspired to what Leibholz called
‘radical arithmetical–mathematical equality’. Such a system, Leibholz insisted, required an
effective, not merely a formal, equality of representation. It required a multi-party system
with a certain kind of party—a unified, programme-oriented organization of active citi-
zens, capable of forming popular political will and immune to the seductions of powerful
interests. Leibholz was part of a long European tradition critical of American parties as
interest-beholden oligarchies. Leibholz’s Parteienstaat was the antidote to the Verbändestaat
(associations state), whose rise Eschenburg bemoaned in a famous essay.190 Embedded in
the very name was a close nexus between party and state. Parties, in Leibholz’s view, were
full-fledged constitutional organs, integral to the structure of the state and essential to the
workings of modern democracy.191
From the Court’s inception, Leibholz’s theories shaped its jurisprudence. In its judgment
banning the Socialist Reich Party, for example, the First Senate proclaimed that Article
21 had raised political parties ‘to the rank of constitutional institutions’.192 As we saw in
Chapter 1, that case considered the tension between Article 21’s enshrinement of a special
role for parties and Article 38’s declaration that individual parliamentarians represent the
people as a whole. Leibholz conceded that the provisions were irreconcilable, that Article 38
was unworkable in the context of the Parteienstaat. The SRP judgment didn’t embrace this
view openly, but did enforce it tacitly. Earlier that same year, the Second Senate character-
ized parties as ‘integral parts of [our] constitutional structure and [our] constitutionally
ordered political life’.193 In 1954, the Court’s Plenum went further, christening parties as
full-blown ‘constitutional organs’ competent to assert their rights in Organstreit proceed-
ings before the Constitutional Court.194 In dicta to the 1958 Party Finance judgment, for
which Leibholz served as rapporteur, the justice’s theories were on ample display. Those
dicta prompted the scheme of public party finance described earlier.
Almost immediately, the programme was challenged on constitutional grounds. The
All German Block, a small party not represented in the Bundestag, complained that by
providing funds only to parties in Parliament, the party finance provisions violated the
equality principle. In 1961, the Second Senate rejected the party’s petition for a preliminary
injunction and suggested in passing that the constitutionality of public party financing had
already been established in the 1958 judgment. The Senate explained that the law allowed
‘the benefited parties to meet their obligation as constitutional organs with greater inde-
pendence from non-objective sources of funds’. Enjoining it would do greater harm to the
general good than depriving the All German Block from funding until the Court ruled
on the merits.195 Earlier, the Court rejected a complaint against a Lower-Saxon state law
that provided public funding only to parties in the state Parliament.196 In 1964, the Court

190  See Eschenburg (n 184).

191 For Leibholz’s views on parties, see Gerhard Leibholz, ‘Der Parteienstaat des Bonner Grundgesetz’
(1951) 2 Deutsches Verwaltungsblaat 1; Gerhard Leibholz, Strukturprobleme der Modernen Demokratie (CF
Müller 1967) 71–77; Gerhard Leibholz, Das Wesen der Repräsentation und der Gestaltwandel der Demokratie
im 20. Jahrhundert (Walter de Gruyter 1966); Gerhard Leibholz, Politics and Law (AW Sythoff 1965) 24–71;
Gerhard Leibholz, ‘Der moderne Parteienstaat’ in Gerhard Leibholz, Verfassungsstaat—Verfassungsrecht (W
Kohlhammer 1973) 68–94. See also Kommers (n 145) 24–26.
192  2 BVerfGE 1, 72 (1952). 193  1 BVerfGE 208, 240–41 (1952).
194  4 BVerfGE 27, 30 (1954); see also 5 BVerfGE 85, 134 (1956); 6 BVerfGE 367, 372, 375 (1957).
195  12 BVerfGE 276, 280 (1961). 196  11 BVerfGE 239 (1960).
 The Party State 93

rejected a similar complaint against a similar law, also stemming from Lower Saxony.197 By
all appearances the programme of public party finance was constitutionally secure.
Still, small parties continued to assail it: the All German Party again in 1962, the Bavarian
Party in 1964. Finally, in 1965, the party finance law was challenged by the state govern-
ment in Hessen—led once more by its minister president, Georg August Zinn, who again
proceeded without consulting the national SPD leadership. The two smaller parties, joined
at oral argument by the far-Right National Democratic Party of Germany (NPD), com-
plained that the law impermissibly benefited only parties strong enough to win seats in the
Bundestag. Hessen, represented once more by Adolf Arndt, contended that the principle of
direct public funding was unconstitutional on its face.
By autumn 1965, rumours of uncertain provenance suggested that the Court would grant
the petitions. But even if the rumours were right, it was unclear which petitions the Court
might grant, and to what degree it would grant them. Repeated delays suggested deadlock
within the Second Senate. And a tie, everyone knew, would run against the petitioners.
If in fact there was a deadlock, it was broken by a remarkable turn of events.

E.╇The ‘recusal’ of Justice Leibholz

In early October 1965, with the second Party Finance case pending before his Senate, Justice
Leibholz gave a lecture at an academic conference in Würzberg. The lecture, entitled ‘State
and Interest Groups’, was in most respects unremarkable—a simple restatement of the
Leibholz’s familiar theory of the party state. 198 But passing comments about the pending
case unleashed a glorious row. According to the official report in Die Öffentliche Verwaltung,
Leibholz styled the case’s plaintiffs ‘an unholy alliance’ of ‘liberals and anti-democrats’.
The report added that Leibholz thought the law necessary ‘to free parties from societal
pressure’.199
Members of the ‘unholy alliance’ were outraged. In short order, the Bavarian Party asked
the Court to exclude Leibholz from further participation in the case. Traditionally, judges
accused of bias are not excluded by their colleagues; they recuse themselves. The decision
whether to recuse oneself is left to the conscience of the individual judge.
In Leibholz’s case, however, the Second Senate opened the question of bias for oral argu-
ment. Leibholz’s seven colleagues listened publicly to the Bavarian Party’s case against his
impartiality. Later, in closed chambers, a majority of them voted to exclude him—a deci-
sion they justified in a ten-page opinion published on 3 March 1966.200 Leibholz was also
excluded from related cases on the dubious ground that the Senate should be identically
composed for all pending judgments related to party finance. They thus extended the exclu-
sion from an Organstreit to a Normenkontroll proceeding—a move the Senate made with-
out ruling explicitly that bias in an abstract review proceeding was even possible.201
It was the first exclusion of a judge for bias in the Court’s history. That its object was
Leibholz—for fifteen years the Second Senate’s moral leader, intellectual star, and formid-
able public champion—came as a great shock. That it was issued against Leibholz’s will,

197╇
18 BVerfGE 34 (1964).
198╇Gerhard Leibholz, ‘Staat und Verbände’ (1966) 24 Veröffentlichung der Vereinigung der Deutschen
Staatsrechtslehrer 6.
199╇ Leibholz’s actual statement was more moderate—to the effect that failing to supply parties with a mini-

mum of public support would make them dependent on societal interests. See Manfred Wiegandt, Norm und
Wirklichkeit: Gerhard Leibholz (1901-1982)—Leben, Werk und Richteramt (Nomos 1995) 70.
200╇ 20 BVerfGE 9 (1966).
201╇ Leibholz’s biographer finds this the most dubious decision in the entire affair. See Wiegandt (n 199) 73.
94 Confidence, 1959–1971

executed in defiance of traditional procedure, and accompanied by a public censure was

immensely controversial.202 Leibholz, after all, insisted solemnly that he hadn’t used the
provocative language ascribed to him.
In aftertimes, Leibholz never spoke of the bias decision. But it must have come as a bit-
ter blow.203 One of those who spoke most vehemently in Leibholz’s defence was his friend
and former colleague, Ernst Friesenhahn.204 More trenchant still was his current colleague,
Willi Geiger.
Within the Senate, Geiger circulated a withering dissent, coldly confuting each argu-
ment put forth in the decision excluding Leibholz. That decision, Geiger concluded, was not
a legal judgment at all, but an act of political calculation. Geiger accused his colleagues—or
rather, presumably, four of his colleagues—of seeing and seizing a chance to tilt the Senate’s
balance in their favour. They saw, further, a chance to silence their most powerful and per-
suasive opponent. The Senate had been deadlocked 4:4, Geiger suggested. At Leibholz’s
expense, those wishing to invalidate the party finance law now grasped a 4:3 majority. It
was unworthy of them.205
Geiger’s dissent was not published until many years later. But his view of the matter was
widespread. The Second Senate conveyed an unflattering image of internal politicking. On
19 April, the justices took the bizarre step of reopening oral argument.206 Ostensibly, there
was new evidence to consider. But it also wouldn’t have looked well to quash the law dir-
ectly after excluding the judge who most obviously supported it. In any case, the Court
conducted a second round of oral arguments, this one lasting three days.
The Bundestag sent an assembly of stars to defend the law. The CDU was represented by
Ernst Benda, the future chief justice; the FDP by Thomas Dehler, the former justice min-
ister. Both maintained that their parties couldn’t balance their books without state subsi-
dies. Both arguments fell on uninterested ears. The justices seemed aloof, even bored. They
looked like men who had made up their minds.207 The only argument that drew universal
attention was offered by Adolf Arndt. Hessen, Arndt told an astonished chamber, no longer
saw public funding per se as a violation of Article 21. His client opposed only the scope of
the current outlays.208
Three months later, on 19 July 1966, the Second Senate announced its judgment.209 Many,
by this time, expected the Court to quash the law; but most were still surprised when it
did. The Court began by conceding that the language of its 1958 and 1961 judgments210
could be understood to mean that state funding of parties was constitutional.211 But the
Court now clarified that these statements focused on parties’ role in preparing for elections.

202  See, e.g., Laufer (n 113) 516–18; Werner Sarstedt, ‘Anmerkung zum Beschluss des Bundesverfassungsgerichts

vom 3. März 1966’ (1966) 21 JuristenZeitung 314; Edward McWhinney, ‘Federal Supreme Courts and Judicial
Review’ (1966) 45 Canada Bar Rev 593.
203  See Wiegandt (n 199) 72–73; see also Christoph Link, ‘Zum Tode von Gerhard Leibholz’ (1983) 108 Archiv

des Öffentlichen Rechts 159.

204  Ernst Friesenhahn, ‘Zur Ablehnung und Selbstablehnung eines Richters des BVerfG wegen Besorgnis der

Befangenheit’ (1966) 21 JuristenZeitung 704.

205  See Geiger, Abweichende Meinungen (n 147) 123–41.
206 See Friedrich Karl Fromme, ‘Grundriβ eines Staatsprozesses’ FAZ (19 April 1966)  Walter Schallies,

‘Parteienfinanzierung—zweite Runde’ Süddeutsche Zeitung (19 April 1966).

207  See Laufer (n 113) 520.
208  See Friedrich Karl Fromme, ‘Halten die Sozialdemokraten Staatszuschüsse für verfassungswidrig oder

nicht?’ FAZ (20 April 1966) 4.

209  20 BVerfGE 56 (1966). This was in response to the complaint from the state of Hessen. The Court dis-

posed of the complaints from the Bavarian, All German, and National Democratic parties the same day. See 20
BVerfGE 119 (1966); 20 BVerfGE 134 (1966).
210  See, e.g., 8 BVerfGE 51, 63 (1958); 12 BVerfGE 276, 280 (1961).
211  20 BVerfGE 56 (n 209) 96–97.
 The Party State 95

Reimbursement for the reasonable costs of an election campaign might permissibly flow
from public coffers.212 But public expenditure for the ‘entire operation’ (gesamte Tätigkeit)
of political parties was unconstitutional.213 The state could not subsidize parties’ day to day
activity.
Why not? Here the Senate began with a conceptual distinction between the will of the
people and the will of the state. The latter must derive from the former, not the former from
the latter. The shaping of the people’s will ‘must remain fundamentally “state-free”’.214 This
principle, derived from Article 20’s decree that ‘all state authority stems from the people’, 215
circumscribed Article 21’s acknowledgement that parties participate in shaping the people’s
will. Article 21 recognized parties as constitutional ‘institutions’ and essential instruments
of popular will-formation.216 But parties were not ‘supreme organs of the state’, and the
state was not bound, or even allowed, financially to maintain them.217 If the state did main-
tain them through regular payments for their entire political operation, it would encroach
impermissibly on the process of shaping public opinion and popular will.218
The Senate was unsympathetic to claims that parties couldn’t survive without state fund-
ing. If this were strictly so for all parties, it meant the people had lost its will to maintain
a robust democracy. A free democracy, the Senate noted, undertook the existential risk of
entrusting the formation of political will to the moral judgement and civic engagement of its
citizens.219 Political will-formation was the business of the citizenry. Political parties who
participate in that process must subsist on citizen donations.220 That such donations might
come from powerful interest groups was a risk the constitution was willing to run. Article
21 protected parties against state meddling but did not guarantee ‘freedom from the influ-
ence of financially-powerful individuals, enterprises, or interests’.221
The state could, the Court repeated, compensate parties only for reasonable campaign
expenses. But what counted as a campaign expense? And how much was reasonable? The
Senate clarified that eligible expenses must be directly related to the campaign, which meant,
among other things, chronologically close to the election.222 Parties themselves, moreover,
could not name the price. Parliament must fix it according to objective criteria—and it need
not by any means reimburse the full costs of the campaign.223 Reimbursement must respect
the equality principle, which meant that parties outside Parliament couldn’t be excluded
entirely, but not that distinctions couldn’t be made on the basis of parliamentary strength.
These were matters for Parliament to decide. But Parliament emphatically must not fund
parties generally for their entire operations.

F. Response to the second Party Finance judgment

The decision was devastating for the CDU and FDP. Both parties predicted sharp cut-
backs in activity and staff; they spoke of the day of the judgment’s announcement as ‘Black
Tuesday’. The SPD was less affected. Small parties were jubilant.
Publicly, CDU and FDP criticism was restrained.224 Criticism in the academy and in the
press was not. Of the major newspapers, only Der Spiegel and the Süddeutsche Zeitung were

212 ibid 97. 213 ibid. 214 ibid 99. 215  Article 20(2) GG.

216 
It even cited an essay by Gerhard Leibholz on the position of parties in modern democracies. 20 BVerfGE
56 (n 209) 100. Gerhard Leibholz, ‘Der Strukturwandel der modernen Demokratie’ in Strukturprobleme der
Modernen Demokratie 79–131 (CF Müller 1958).
217  20 BVerfGE 56 (n 209) 101. 218 ibid 102. 219  ibid 102–03. 220 ibid 103.
221 ibid 105. 222 ibid 115. 223 ibid 116.
224  See Arthur Rathke in Rheinischer Merkur (5 August 1966); Süddeutsche Zeitung (21 July 1966); Süddeutsche

Zeitung (25 July 1966); Süddeutsche Zeitung (29 July 1966); see also Laufer (n 113) 532.
96 Confidence, 1959–1971

happy with the judgment’s outcome. Even they were critical of its method. Though pleased
with the Court’s pragmatic results, Rudolf Augstein wrote that the judgment displayed ‘the
abundant power [Machtfülle] of this highest German Court’, a Court whose judges ‘not
only interpret existing law’ but ‘make law themselves’. The justice made ‘political decisions’
not subject to scrutiny by any legal standard. In the Party Finance judgment, Augstein con-
cluded, the justices appeared ‘no more as supreme judges, but rather as supreme guardians
making pragmatic decisions as a sort of council of elders with executive authority’.225 Die
Zeit was blunter still, entitling its report, ‘A Judgment Without Logic’.226
For other critics, both academic and journalistic, the judgment’s greatest failure was not
its lack of logical rigour but its refusal to grapple with contemporary political realities.227
For these critics, the Court’s conceptual distinctions were tidy, facile, and anachronistic.
Peter Häberle, a law professor, complained that the Court’s distinction between the will
of the people and the will of the state was merely the nineteenth-century division between
society and state parading in new and ill-fitting garb.228 In general, critics accused the Court
of exaggerating the threat to parties from the state and underestimating the threat from
powerful private interests. But here the methodological and substantive criticisms became
confused. On the one hand, the Court allegedly deployed conceptual mystifications to cloak
its wilful pragmatism; on the other hand, the Court’s pragmatic result was the wrong one.
Almost immediately the parties proposed new legislation. The CDU mused about amend-
ing the constitution or compensating costs for the 1965 election. On 24 July 1967, after a
year of haggling, the Bundestag passed an amended law on political parties. In general, the
law codified much of the Court’s party jurisprudence from the previous decade and a half.
The reimbursement section, in particular, obeyed the prescriptions of the Court’s July 1966
judgment. The law provided 2.5 DM per registered voter to be divided among all parties
receiving at least 2.5 per cent of the second-place votes in the most recent national election.
The law drew forth a flurry of constitutional complaints from small political parties. In a
3 December 1968 judgment the Court reviewed no fewer than fourteen of the law’s funding
provisions. The Second Senate sustained nearly all of them.229
The 1968 judgment, Friedrich Karl Fromme summarized in the Frankfurter Allgemeine
Zeitung, consisted of ‘a small no and a momentous yes’.230 In fact there was more than one
of each. The most important Yes affirmed the essence of the law—periodic subsidies to pol-
itical parties for election campaigns. A six-justice majority upheld the scheme of lump sum
payments on grounds of administrative ease.231 The scope of the payments, which might
total 99 million DM for the 1969 election, was also unobjectionable. It accorded with the
political, economic, and social realities of a modern, mass-media election campaign.232 This
part of the judgment was unanimous.
The portion of the decision approving instalment payments to parties was more con-
tested. After all, the core sentence of the 1966 judgment forbade ‘state financing of parties

225  Rudolf Augstein, ‘Wahlkampf unter Kontrolle’ Der Spiegel (25 July 1966) 22.
226  ‘Ein Urteil ohne Logik’ Die Zeit (22 July 1966) 1.
227  See, e.g., Rolf Zundel, ‘Die wirklichkeitsfremden Bundesrichter’ Die Zeit (29 July 1966) 5; Walter von La

Roche, ‘Anmerkungen zum Urteil über die Parteienfinanzierung’ (1966) 17 Politische Studien 570; Peter Häberle,
‘Unmittelbare staatliche Parteienfinanzierung unter dem Grundgesetz’ (1967) 7 Juristische Schulung 64; Hans
Jochen Hauβ, ‘Parteifinanzen’ (1966) 11 Blätter für deutsche und international Politik 664; Heinz Laufer, ‘Zur
staatlichen Finanzierung der politischen Parteien. Die Urteile des Bundesverfassungsgerichts vom 19. Juli 1966’
(1966) 16 Aus Politik und Zeitgeschichte 1.
228  Häberle, ‘Unmittelbare staatliche Parteienfinanzierung’ (n 227) 64–74.
229  24 BVerfGE 300 (1968).
230  Friedrich Karl Fromme, ‘Ein kleines Nein und ein gewichtiges Ja’ FAZ (10 December 1968) 2.
231  24 BVerfGE 300 (n 231) 335. 232 ibid 339.
 The Party State 97

through annual or monthly payments for their entire political operation’.233 Three of the jus-
tices thought periodic payments for campaign costs too closely resembled what the Senate
had already condemned. But five of their colleagues felt differently. ‘Installment payments
are part of compensation for campaign costs’, they wrote. ‘They are justified by the necessi-
ties of the campaign’.234 In a modern democracy, parties worked to shape political will even
in non-election years. A successful campaign required long-term planning and complex
machinery. In any case, it was impossible to fix the precise temporal beginning of an elec-
tion campaign.235 This was a decided shift, in tone at least, from the 1966 judgment. Then
the Court had condemned regular state expenditures for parties’ ongoing work of public
‘education’; now the Court approved such expenditures for parties’ endless electioneering.
Perhaps, at least, there was a gain in transparency. Under the new regime, parties could give
up the pretence of shaping political will and candidly solicit votes.
Of the new law’s condemned provisions the most important was one limiting campaign
funding to parties receiving at least 2.5 per cent of second-place votes in the most recent
election. This hurdle, six justices held, was too high.236 Parliament could permissibly work
to prevent a proliferation of splinter parties, but the 5 per cent bar on parties entering
Parliament already did much to achieve this goal. At the campaign level, the field must be
more open. The Court suggested an alternative minimum of 0.5 per cent. In holding the
2.5 per cent barrier unconstitutional, the Court granted the petition of the NPD, which
would now enjoy public funding. Some thought this sensational. ‘Tax Money for Radicals’,
screamed the conservative Christ und Welt.237 Tamer accounts stressed the funding of small
parties as the judgment’s major holding.238
Court insiders, however, saw the judgment’s major innovation in its tacit revision of the
1966 decision. For Justice Leibholz, it was a personal vindication. He wrote to the SPD treas-
urer Alfred Nau that although the press’s attention had been absorbed by the ‘barrier clause’
question as it related to the NPD, ‘more important to me personally … is that the decision
revises in essential points the erroneous judgment [Fehlurteil] of 1966, and I cannot dis-
guise a certain inner satisfaction’.239 Wilhelm Hennis, on the other hand, warned Leibholz
that the justice’s enthusiasm rested on a roseate misreading of underlying realities.
As I already felt nothing but uneasiness for the state financing of parties, the provisioning with
public means of all splinter groups as well—which the new judgment makes inevitable—will
not make me feel any easier. I think, revered Herr Leibholz, that you would see these things
somewhat differently if, like me, you were active within a party. What will be done with this
money has little to do with the intentions you associate with it. I make no secret of the fact
that, all in all, the dependence of parties on financial groups seems to me more tolerable than
this new-found form of financing, by which the party member has become even more uninter-
esting to the party leadership than before.240

Party finance would become an enduring—and enduringly controversial—theme of

the Court’s jurisprudence.241 The power of parties has been a defining feature of the pecu-
liar brand of democracy that has evolved in the Federal Republic. For better or worse, the
Constitutional Court has played a decisive role in making the postwar party system what

233 
20 BVerfGE 56, 102 (1966). 234  24 BVerfGE 300 (n 231) 348. 235  ibid 349–50.
236 
ibid 340–42.
237  Johannes Gross, ‘Steuergeld für die Radikalen’ Christ und Welt (13 December 1968).
238  See, e.g., ‘Karlsruher Entscheidung: Geld auch für kleine Parteien’ FAZ (4 December 1968).
239  Gerhard Leibholz to Alfred Nau, 16 December 1968, BAK N 1334/33 (Nachlass Leibholz).
240  Wilhelm Hennis to Gerhard Leibholz, 13 January 1969, BAK N 1334/335 (Nachlass Leibholz).
241  See, e.g., 41 BVerfGE 399 (1976); 52 BVerfGE 63 (1979); 73 BVerfGE 40 (1986); 85 BVerfGE 264 (1992); 111

BVerfGE 54 (2004); 111 BVerfGE 382 (2004); 121 BVerfGE 108 (2008).
98 Confidence, 1959–1971

it is. Ironically, the Court owes some of its great popularity to public perceptions of the
Court’s distance from the parties it has empowered.

III.  The State of Exception

Much had changed, in the country and in the Court, between the Court’s Party Finance
judgment of 1966 and its softening successor of 1968. The ill-starred chancellorship of
Ludwig Erhard ended on 25 November 1966. Less than a week later, Kurt Georg Kiesinger
(CDU), heading a ‘grand coalition’ of the Union parties and the SPD, became the Federal
Republic’s third chancellor.
Many found the regime change unsettling. On the one hand, it meant a season of govern-
ance without viable opposition—and this just when the idea of opposition had acquired
lasting legitimacy. On the other hand, it recalled the broad coalitions of the Weimar era,
with their internal bickering, partisan rigidity, and ultimate paralysis. The early months of
the grand coalition coincided with the first economic recession of the postwar era, a further
source of popular malaise. Later, the grand coalition would face fierce opposition from the
most sustained and visible protest movement since the War.
A year after the grand coalition took office the Constitutional Court experienced its sec-
ond major membership turnover of the decade. Earlier, in 1965, Werner Böhmer, a judge
on the Federal Administrative Court, had replaced the retiring Karl Heck on the First
Senate.242 During the summer and autumn of 1967, there were four additional changes, two
on each Senate. On the First Senate, Herbert Scholtissek and Hugo Berger were replaced,
respectively, by Hans Brox, a civil law professor in Münster, and Wolfgang Zeidler, a judge
and government lawyer in Hamburg.243 On the Second Senate, Fabian von Schlabrendorff, a
prominent lawyer from Hessen, replaced Julius Federer; and Walter Seuffert, an SPD mem-
ber of the Bundestag, succeeded Friedrich Wilhelm Wagner as the Court’s vice president.244
The following year Hans-Justus Rinck, a judge in the Federal Court of Justice, also joined
the Second Senate, replacing Anton Henneka.245 Seuffert and Zeidler were nominated by
the SPD; Schlabrendorff, Rinck, and Brox by the CDU.
The changes marked a generational transition within the Court. The average age of
the six outgoing judges was 67. A writer for Christ und Welt had spoken unfeelingly of
‘Methuselahs in red robes’.246 The average age of the incoming justices was 51. By and large,
the emeriti had been teenagers during the Wilhelmine Empire and had come of political age
during the Weimar Republic. The newcomers, by contrast, were members of a generation
decimated by the War. The odds of survival for German men born between 1907 and 1924
were gruesomely low.

242  On Böhmer, see ‘Bundesverfassungsrichter a.D. Prof. Dr.  Werner Böhmer 90 Jahre’ (2005) 24 Neue

Zeitschrift für Verwaltungsrecht 547.

243  On Brox, see Bernd Rüthers, ‘Hans Brox †’ (2009) 53 NJW 2106; on Zeidler, see Roman Herzog, ‘Wolfgang

Zeidler †’ (1988) 42 NJW 881.

244  On Schlabrendorff, see Richard Ley, ‘Fabian von Schlabrendorff †’ (1980) 34 NJW 2565; on Seuffert, see

Richard Ley, ‘Walter Seuffert †’ (1990) 44 NJW 891.

245  Rinck had formerly been a law clerk to Justice Leibholz and was the co-author of Leibholz’s influential text-

book examining the Basic Law in the light of the Court’s jurisprudence. Leibholz believed that Walter Seuffert,
the Court’s vice president, had tried to block Rinck’s appointment. Gerhard Leibholz to Adolf Arndt, 4 October
1968, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Adolf Arndt, Box 8, Mappe 21). Some objected to Rinck on the
grounds that he was a former clerk; Leibholz thought this unfair, since no one had similarly objected to Zeidler.
Gerhard Leibholz to Adolf Arndt, 14 October 1968, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Adolf Arndt, Box
8, Mappe 21).
246  Peter Jochen Winters, ‘Methusalem in roter Robe’ Christ und Welt (26 May 1967) 4.
 The State of Exception 99

Three of the new appointees, Seuffert, Schlabrendorff, and Böhmer, continued the
Court’s anti-Nazi tradition. Böhmer was expelled from law school on political grounds in
1936. Seuffert was arrested and imprisoned on suspicion of treason in 1940. Schlabrendorff,
a reserve officer of noble Prussian stock, took part in two attempts to assassinate Hitler. In
March 1943, he and a friend, Henning von Tresckow, planted a bomb on the Führer’s plane.
It failed to detonate. The following year Schlabrendorff was part of the famous failed coup
of 20 July 1944. A people’s court (Volksgerichtshof ) acquitted Schlabrendorff, but Hitler per-
sonally revoked the acquittal and ordered Schlabrendorff’s execution. The order was never
carried out, but Schlabrendorff spent the rest of the War in a concentration camp. After the
War, he wrote a popular memoir—Officers against Hitler247—and rose to distinction as one
of the finest lawyers in the Federal Republic. Contemporaries saw Schlabrendorff’s appoint-
ment as a partial payment of the nation’s debt to the ‘men of 20 July’.
If so, the payment was well timed. The previous year, 1966, Justice Willi Geiger had
served as president of the Catholic Church congress (Kirchentag), in which capacity Geiger
claimed, or allowed others to claim on his behalf, that after the war a jury court ruled that
he had been ‘a passionate opponent of National Socialism’. The suggestion outraged the Left
Liberal press. The Süddeutsche Zeitung published explosive excerpts from Geiger’s book
on the Nazi press law.248 The socialist organ Vorwärts published a lengthy exposé entitled
‘Geiger’s Brown Vest’.249 This renewed attention to Geiger’s past drew protests from abroad
as well. Ernst Linz, a lawyer in Israel, sent an agitated letter to Gebhard Müller. Müller’s
response—dispassionate, reassuring, exculpatory—was answered within the Court by a
scalding rebuttal from Gregor Geller, Geiger’s colleague on the Second Senate.250
Geiger himself kept a low profile throughout the affair, but the criticism took its toll.
He was grateful for an occasional note of support. One such note came from a surprising
source. On 26 September 1966, Geiger wrote to Adolf Arndt:
Your encouragement has heartened me to carry on my work. Don’t expect me to explain, jus-
tify, or excuse what I wrote thirty years ago; it was simply wrong. But perhaps I may say to you
that I realized this error earlier than my critics, and that through my public activity and in my
vocation I have tried to make this clear. I cannot get over the fact that ‘friends’ and ‘colleagues’
who have been in the know for a long time have taken part in this campaign.251

The affair soon blew over, and Geiger remained in the Court for eleven more years. But per-
haps the judicial selection committee hoped, against the backdrop of the Geiger affair, that
the triple appointment of Böhmer, Seuffert, and Schlabrendorff would remind the country
of a very different tradition among the Court’s personnel.

A.╇The ‘grand coalition’ and the student revolts

This transition in the membership of the Court came on the eve of convulsions in the
country at large. The grand coalition’s macroeconomic steering helped ease the country
out of �recession, but by 1967/68 a new generation was coming of age, for which the Federal
Republic’s economic vitality was an inadequate cover for its moral bankruptcy. Young

247╇Fabian von Schlabrendorff, Offiziere gegen Hitler (Fischer Bücherei 1946).

248╇‘Das Abgründige in Professor Geiger’ Süddeutsche Zeitung (18 July 1966) 3.
249╇ Hellmuth Rieber, ‘Des Geigers braune Weste’ Vorwärts (27 July 1966).
250╇ The entire correspondence is reproduced in Klaus-Detlev Godau-Schüttke, Der Bundesgerichtshof: Justiz

in Deutschland (Tischler 2005) 361–81.

251╇ Willi Geiger to Adolf Arndt, 26 September 1966, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Adolf Arndt,

Box 6, Mappe 16).
100 Confidence, 1959–1971

West Germans, especially university students, were angered by America’s escalating war
in Vietnam and sickened by their own country’s failure to reform systematically after the
catastrophe of the Third Reich. It didn’t help that Kurt Georg Kiesinger was the first chancel-
lor who had been a member of the NSDAP. Young protesters, and the Left-leaning academ-
ics who applauded them, embraced a ‘shift in values’ (Wertewandel) that had been taking
root quietly for many years. Traditional morés—especially sexual morés—were dismissed
as ‘secondary virtues’ (Sekundartugenden). In their sweeping rejection of the German past,
young rebels landed on the ingenious notion that glandular indulgence was somehow an
anti-Fascist gesture. Against the fusty canons of their parents, students trumpeted an ethic
that was profoundly social and intensely political.
But the young people wanted nothing to do with the reigning political parties or the
ruling political class. Just when the Federal Republic seemed to have embraced the legiti-
macy of formal political opposition, the protesters denounced the prevailing opposition as
inauthentic—and, under the grand coalition, non-existent. The protest movements chris-
tened themselves an ‘extra-parliamentary opposition’ (Auβerparlamentarische Opposition,
or APO). They rejected all existing parties and challenged, tout court, the legitimacy of the
West German state. For the first time, the political culture of the Federal Republic had an
entrenched counter-culture. The APO’s organization was loose, but its anger was focused.
Internationally, its ire was aimed at the war in Vietnam; domestically, its wrath descended
on legislative proposals, long in the workings, for an emergency constitution.

B.╇The Emergency Laws
The so-called ‘Emergency Laws’ (Notstandsgesetze) included a constitutional Â�amendment
that empowered the executive branch, in times of national crisis, to abridge basic rights. The
law had a long history. The Basic Law’s framers, remembering the authoritarian abuse of
executive decrees under Article 48 of the Weimar constitution, pointedly �omitted emergency
provisions. During the immediate postwar era, the Federal Republic’s Allied occupiers took
strong measures to prevent crises. Among other things, the Allies exercised wide-ranging
surveillance over telecommunications and the postal service. The Allies reserved the right
to continue these activities even after the restoration of (West) German sovereignty, which
began in 1955. But the Allies promised to stop doing so as soon as German legislation
empowered local officials, in case of emergency, to perform these same functions.
Early proposals for an emergency statute were serial failures—in 1958, in 1960, and again
in 1963. Only under the grand coalition did the government command the two-thirds
Bundestag majority needed to secure the legislation through constitutional amendment.
The emergency amendment, ratified 30 May 1968, became the new and expanded Article
10(2) GG. Together with the implementing legislation passed in August, the amendment
empowered state officials, when necessary to combat foreign or domestic enemies, to con-
duct telephone wiretaps and to interfere with postal correspondence. The amendment trans-
ferred review of such surveillance from the courts to special auxiliary agencies appointed
by Parliament. Under the implementing law, three-member advisory commissions would
review the admissibility and necessity of surveillance measures.
The laws were passed amid fiery popular opposition.252 Student protesters, recently
roused by the shooting and wounding of APO icon Rudi Dutschke, took to the street by the

252╇ For an account of popular opposition to the law, see Boris Spernol, Notstand der Demokratie: der Protest

gegen die Notstandsgesetze und die Frage der NS-Vergangenheit (Klartext 2008).

 The State of Exception 101

thousands—in (mostly) peaceful demonstrations, hunger strikes, and, on 11 May 1968, a

march on the capital itself. Students tarred the law with a non-subtle signature: they called
it the ‘NS-Law’—‘NS’ evoking not Notstand (state of emergency), but National Socialism.
The law, student activists shrieked, was a second enabling law, thirty-five years after the fact.
The students were not alone in their hostility. Two years earlier Karl Jaspers warned that
the proposed legislation would pave the path from party oligarchy to dictatorship.253 In late
May 1968, Jürgen Habermas and Theodor Adorno spearheaded an action committee called
‘Democracy in Emergency’, calling on writers, artists, and academics to unite against the
law.254 Günter Dürig denounced the law as ‘an Orwellian experiment’.255
Particularly troubling for many opponents of the emergency laws was the near-unanimity
with which they were passed. The laws sailed through Parliament behind the strength of the
Union/SPD grand coalition over only a handful of abstentions and the ineffectual opposi-
tion of the FDP. There was not even an opposition party with enough votes to challenge the
amendment before the Constitutional Court. There was one consolation, however: Georg
August Zinn was still minister president of Hessen. On 29 September 1969, Zinn’s govern-
ment filed a constitutional complaint challenging the amendment and the implementing
statutes. It was Zinn’s last appeal to Karlsruhe; his twenty-year premiership was over before
the Court announced its judgment.
Hessen, later joined by Bremen and by groups of judges and lawyers in Mannheim and
Frankfurt, argued that that the constitutional amendment was itself unconstitutional—that
it violated Article 1 GG’s guarantee of human dignity and offended Article 20’s entrench-
ment of the Rechtsstaat principle, thereby infringing Article 79’s ‘eternity clause’, which
shielded Articles 1 and 20 against abridgement or amendment. The emergency laws, Hessen
contended, would subject individuals to state surveillance without the possibility of defend-
ing their privacy in a court of law. This would make the individual a mere instrument of
state authority—a textbook affront to the Kantian principle of human dignity. Further, by
stripping courts of their powers of review, the amendment had undermined the separation
of powers—a cardinal principle of the Rechtsstaat. In a supplementary Gutachten, basically
an amicus brief, Günter Dürig, whose earlier writings profoundly influenced the Court’s
fundamental rights doctrine, thundered that the dual denial of notification and judicial
review enabled state invasion of citizen privacy to proceed in absolute secrecy—an assault
on the very core of the rule of law.
The Court didn’t decide the case until 15 December 1970.256 Though the Second Senate
had been announcing its vote tallies for a few years, and though the Spiegel judgment had
articulated the views of dissenting justices, the Emergency Laws judgment was one of the
first major judgments since dissents were formally authorized in 1970 to include a separate
dissent. And what a forceful dissent it was.
The judgment of the Court sustained the emergency laws by a vote of 5:3 in circum-
stances very different from those under which Parliament had passed them. The grand
coalition had been replaced by a Social–Liberal (SPD–FDP) coalition led by Willy Brandt,
Germany’s first socialist chancellor since Weimar. The student movement had fizzled;
the SDS, the major Leftist student union, had disbanded. The judgment was not nearly as
explosive as the amendment itself. Even so, the judgment’s friends were few, its enemies
loud and legion.

253  Jaspers (n 187) 174.

254  See ‘Professoren, Künstler und Schriftsteller protestieren’ FAZ (27 May 1968) 1.
255  Günter Dürig, ‘Ein Orwellsches Experiment’ (1968) 1 Zeitschrift für Rechtspolitik 11.
256  30 BVerfGE 1 (1970).
102 Confidence, 1959–1971

The majority judgment—joined by Justices Seuffert, Leibholz, Kutscher, Geiger, and

Rinck—began with a lengthy exegetical excursus. The constitutionality of the new Article
10(2) GG, the majority wrote, depended on the meanings of dignity, Rechtsstaat, and
the eternity clause, and on their relationship one to another. But none of these clauses
could be understood in isolation. They were part of a broader constitutional system that
embodied conscious decisions by the framers. Two of these decisions were of paramount
importance in the current case. First, the Federal Republic was a militant democracy in
which fundamental rights could not cloak assaults on the constitutional order. 257 Second,
fundamental rights could be limited to benefit the community and secure superior legal
values.258
Informed by these basic decisions, the majority read narrowly the provisions the com-
plainants invoked. Article 79 did not ban all amendments that in any way limited the
guarantees of Articles 1 and 20, only amendments that affected their essential core.259
Nothing in Article 20’s Rechtsstaat principle demanded that every citizen must, under all
circumstances, enjoy the amplest possible judicial process, nor did the principle foreclose
limitations on Article 19(4)’s guarantee of access to the legal process.260 The separation
of powers principle required a check on executive authority, but in exceptional cases that
check could come from independent bodies appointed by Parliament or erected within
the executive itself.261 Perhaps most crucially, Article 1’s exaltation of human dignity was
not violated every time an individual was made an instrument of the state, but only when
the state’s treatment of an individual fundamentally disparaged his dignity or denied his
personhood.262 This sounded very nearly like an intentionality requirement. The state,
apparently, could derogate a citizen’s dignity only if it tried to.
Even by this cramped conception of dignity, the majority found that the challenged law
violated dignity in part. But it was only a small part. The majority held that law could not
constitutionally deny notice once it became clear that notice would not threaten the pur-
pose of the surveillance. This was a fuzzy restriction, hard to enforce. For the rest, the Senate
majority rejected the complaints across the board. The amendment and its implementing
law did not essentially limit or flatly abolish constitutional principles made sacrosanct by
Article 79. The laws represented, rather, ‘system-immanent modifications of general con-
stitutional principles’ that otherwise remained in full force.263 By ‘system immanent’ the
majority meant, presumably, that the amendment altered the system in order to strengthen
it, and did so on the system’s own terms. But it was a woolly concept—a metaphysical mys-
tification in which critics discerned an ominous precedent.
Among the sharpest critics were the Senate’s three dissenters, Justices Schlabrendorff,
Geller, and Rupp.264 In the dissenters’ view, the majority had begged the question from the
outset, interpreting Article 10(2) according to general norms of constitutional construction
when the question at hand was whether Article 10(2) was a valid norm that could be so con-
strued.265 What’s more, the majority’s fixation with constitutional interpretation led it to
ignore legislative history—with a resultantly Pollyannaish view of the frequency and scope
of the law’s probable application.266
The majority’s gravest sin, though, was its cramped conception of dignity, which seemed
to ban little more than ‘the reintroduction of torture, pillories, and the methods of the Third
Reich’.267 Dignity, for the dissenters, meant much more. It prevented the state from treating

257 ibid 19. 258 ibid 20. 259 ibid 24. 260 ibid 25. 261 ibid 28. 262 ibid 26.

263 ibid 29.
264  The dissent was published on 4 January 1971, twenty days after the majority opinion was announced.
265  30 BVerfGE 1 (n 256) 34–35. 266 ibid 35–37. 267 ibid 39.
 Conclusion 103

individuals ‘un-personally’, not merely from treating them with contempt.268 At the very
least it meant, in the context of the Rechtsstaat, that an individual must be allowed to partic-
ipate in his own trial.269 The true state of exception, the dissent concluded, belonged to war-
time, not to seasons of ‘quotidian law’ (juristischer Alltag). Militant democracy meant both
more and less than raison d’état.270 The eternity clause was ‘meant to be interpreted and
applied strictly and unbendingly. It is designed, not least, to defend against beginnings’.271
Popular and academic critics picked up where the dissenters left off. Günter Dürig had
warned that if the Court sustained Article 10(2), Article 79 would become a dead letter.
There would remain no restraint at all on the authority of legislative supermajorities to
amend the constitution.272 Peter Häberle thought Dürig’s advocacy in the case was marked
by a certain ‘Mosaic wrath’. Häberle himself condemned the judgment as a rare but not
oxy-moronic instance of ‘unconstitutional constitutional jurisprudence’ (verfassungswid-
rige Verfassungsrechtsprechung).273 Critics censured the majority for failing to construe
Article 79 as it would other constitutional norms—for trivializing the eternity clause and
emasculating its impact. The purpose of Article 79, many critics noted, was to prevent the
first blows to the free and democratic edifice, not simply to ensure, in the last instance, that
the structure did not come tumbling down.
These criticisms appeared in the press as well. Der Spiegel criticized the Court for betray-
ing principles enshrined in two decades of the Court’s own doctrine. The majority had made
an exception, the magazine complained, to principles it had long declared exception-less.
The Court’s blessing on this first ‘system-immanent modification’ of the constitutional
order (whatever that meant) was sure to inspire others.274 For many contemporaries the
judgment signalled a setback for the rule of law and the retreat of the Constitutional Court
into a posture of judicial restraint. Who, many wondered, if not the Constitutional Court,
could restrain the constitution-making impulses of a future ‘grand coalition’? Court watch-
ers fretted that the Court’s capitulation would embolden future legislatures and undermine
the Court’s authority. In the event, fears that the Court would retreat into a shell of defer-
ence and restraint proved colossally unfounded.

Conclusion
Reactions to the Court’s Emergency Laws decision say much about popular perceptions
and expectations of the Court. From the European Defence Community controversy to the
Television judgment to the Spiegel Affair, the Court had done much to advance the legiti-
macy of Opposition. By the time of the Emergency judgment, many looked to the Court for
opposition itself. The Court failed to oblige, and many were bitterly disappointed. The man-
ner of the failure also stung. The Court had not upheld the laws out of deference to a pro-
digious parliamentary majority and in acknowledgement of the impossibly complex and
agonizing interplay between the Federal Republic’s loftiest constitutional abstractions and
its most wrenching existential threats. The Court had announced, rather, that the granite
pillars of the Basic Law were more flexible than one had supposed. The majority treated the
case as a straightforward matter of (narrow) interpretation. They acted, or at least wrote, as
though the case were easy.

268 ibid 40. 269 ibid 45. 270 ibid. 271  ibid 47 (emphasis added).

272 In Peter Häberle, ‘Die Abhӧrentscheidung des Bundesverfassungsgerichts vom 15.12.1970’ (1971) 24
Juristen Zeitung 145, 145.
273 ibid 156. 274  ‘Erst Sinnvoll’ Der Spiegel (21 December 1970) 26.
104 Confidence, 1959–1971

That the judgment’s critics shouted themselves hoarse complaining that the Court had
done too little says much about the Court’s increasing stature and the shifting political tides
in the Federal Republic. These critics echoed a compulsive theme of the decade’s public
law scholarship: the disparity between the constitutional letter of the Basic Law and the
political realities of the Federal Republic—the gap between ‘constitution and constitutional
reality’, the lacunae left by the ‘unfulfilled Grundgesetz’.275 Some praised the Court for help-
ing, others chastened it for failing, to close the chasm. Still others deemed the ostensible
problem exaggerated and found the Court’s intrusions to fix it excessive. With regard to
the Court’s fundamental rights jurisprudence, the Carl Schmitt school continued to rail
against the ‘tyranny of values’—the Court’s expansive and vainglorious interpretation.276
Even scholars on the other side of the political and methodological divide thought the Court
had gone too far. In his 1968 inaugural lecture in Freiburg, Wilhelm Hennis embraced
Horst Ehmke’s 1961 critique of the Court’s ‘extensive fundamental rights interpretation’.277
Hennis thought commentators were asking too much of the constitution—and that the
Court was doing too much in response. But the loudest, most public, most sustained cri-
tique of the Court’s overreaching came from a very different, highly unlikely source.
Though he had studied law, Hans Dichgans was more an industrialist than a jurist.
His business was not the parsing of legal texts but the management of iron and steel.278 In
1961, Dichgans joined the Bundestag—as a CDU candidate from North-Rhine-Westphalia.
In Parliament, Dichgans became convinced that the landscape of German democracy fared
ill. The problem, he determined, was systemic; its roots constitutional. The Basic Law itself
required wholesale reformation—and its judicial guardians needed taming.279 Genuinely
alarmed, the steel manager took up his pen to propound these theses in a restless cataract
of articles and a pair of strenuous books.280 Dichgans chaired a parliamentary committee
that considered calling a national assembly charged with full-scale constitutional revision.
Martin Kriele, a law professor in Cologne, warned Dichgans that such an assembly would
unite an omnigatherum of ‘fantastists and utopians’.281 Many agreed, and the committee’s
labours led nowhere. More enduring was Dichgans’ critique of the Court, which found a
rumbling echo in the decade to come.
What, in Dichgans’ view, was wrong with Karlsruhe? The framers of the Basic Law, he
wrote, trusting voters too little, had trusted judges too much. Wherever possible, the framers
had made judges overseers of politicians. They created an ‘over-dimensioned constitutional
court’. The justices had too much authority—and there were too many of them. The Court’s
unwieldy structure—sixteen judges spread across two chambers—promoted a bureaucratic

275  See, e.g., Adolf Arndt, Das Nicht erfüllte Grundgesetz. Ein Vortrag (Tübingen: Mohr 1960). A periodical

launched in Cologne in 1966 carried the title ‘Verfassung und Verfassungswirklichkeit’.

276  Exemplary was Ernst Forsthoff, Zur Problematik der Verfassungsauslegung (Kohlhammer 1961).
277 Horst Ehmke, Wirtschaft und Verfassung (CF Müller 1961); Wilhelm Hennis, Verfassung und

Verfassungswirklichkeit. Ein deutsches Problem (JCB Mohr 1968) 20–21.

278  Dichgans, a leading expert on price formation and rationing from the mid-1930s onward, was a key figure

in the wartime management of the steel economy.

279  Dichgans had complained directly to some justices of the Court’s political interference as early as 1963. See

Hans Dichgans to Gerhard Leibholz, 14 June 1963, BAK N 1334/3 (Nachlass Leibholz).
280  The books were Hans Dichgans, Das Unbehagen in der Bundesrepublik:  Ist die Demokratie am Ende?

(Econ Verlag 1968); and Vom Grundgesetz zur Verfassung. Überlegungen zu einer Gesamtrevision (Econ Verlag
1970). For representative articles, see Hans Dichgans, ‘Eine verfassunggebende Nationalversammlung’ (1968)
1 Zeitschrift für Rechtspolitik 61; Hans Dichgans, ‘Möglichkeit und Grenzen der Verfassungsgerichtsbarkeit’
Politisch-soziale Korrespondenz (1 February 1969); Hans Dichgans, ‘Zu viele Verfassungsrichter in Karlsruhe’
Christ und Welt (10 January 1968); Hans Dichgans, ‘Die Verfassungsgerichtsbarkeit’ Deutsche Tagesposte (28
February 1969); Hans Dichgans, ‘Parlament und Verfassungsgericht’ Das Parlament (30 August 1969).
281  Martin Kriele to Hans Dichgans, 22 July 1968, BAK N 1281/12 (Nachlass Dichgans).
 Conclusion 105

‘love of detail’. It helped breed a perfectionism that made justice imperfect and slow. It pro-
duced opinions in which the Court acted as a micro-managerial supra-Parliament, delving
into the wonkish minutia of politically charged cases (the Party Finance sequence was his
especial bête noir) and delivering its conclusions to the Bundestag with the unassailable fiat
of constitutional command. It was the topmost pinnacle of arrogance, Dichgans fumed, for
the Court to presume it could do such detailed policy work better than Parliament.282
Dichgans saw in the justices a mongrel band of failed politicians who sought to run
the world from Karlsruhe and robed professors who never bothered to ask whether their
judgments were practicable. What’s more, the judgments were badly written. Dichgans
compared the Court’s ‘flimsy, bureaucratic’ prose unfavourably with the ‘manly resolu-
tion’ evident in the language of the United States Supreme Court. In the Federal Republic,
one heard the monotonous anonymity of a legislative super-committee; in America one
heard ‘the powerful personality of the individual judge’. Dichgans longed for the thunder-
ous cadences of Louis Brandeis, the urbane wisdom of Felix Frankfurter, the acidulated
epigrams of Oliver Wendell Holmes. This wasn’t just a matter of style. Dichgans wanted the
justices to be statesmen, to possess ‘an authority which separates this Court decisively, in its
function and in the consciousness of the citizenry, from the rest of the judiciary’. Dichgans
favoured a single chamber of seven judges, an American-style system of certiorari, a more
modest jurisdiction, and justices genuinely committed to the principle of restraint.283
Some justices assured Dichgans that they were already so committed. Walter Seuffert,
the Court’s vice president, sent Dichgans an essay he had published in the Neue Juristische
Wochenschrift, a leading legal weekly, on the ‘Delimitation of the Activity of the
Constitutional Court vis-à-vis the Legislature and the Judiciary’.284 Fair words, Dichgans
shot back, but contradicted by events. ‘I heartily congratulate you on your beautiful essay’,
Dichgans wrote, the whole of which ‘one can only underscore. But the number of cases in
which the Federal Constitutional Court—with a majority, moreover, of 5 to 3—has vio-
lently overstepped the boundaries you have drawn, has become too great. The political
branches will have to occupy themselves therewith’.285 Dichgans did his best to see that
they did. Within Parliament, Dichgans’ cries of censure and calls for reform were answered
by Claus Arndt (SPD), the thirty-one-year-old son of Adolf Arndt. Dichgans circulated
copies of his own response to the younger Arndt among parliamentary colleagues, but met
with an ambivalent response. A note from Helmut Schmidt, who as chancellor would echo
and expand Dichgans’ critique, was typical. The Court’s occasional adventurism, Schmidt
noted, had to be balanced against its genuine achievements. ‘There can be no doubt’, Schmidt
wrote, ‘that, in principle, a constitutional court runs the risk of encroaching in the political
realm of the legislator. On the other hand, the Court has decisively contributed to the fact
that, from the state’s side and from the citizens’, the constitution is regarded and followed in
its full extent’. As just one example of the Court’s fulfilment of this necessary role, Schmidt
cited the Court’s recent judgment on the legal standing of children born out of wedlock—a
judgment that pressed the legislature, at long last, to honour the constitution’s command
that non-marital children receive equal treatment under the law.286

282  Dichgans was the product of a Nazi-era glorification of ‘economic self-administration’ (wirtschaftliche

Selbstverwaltung) within the corporatist undergrowth of German industry. The watchwords of this bureaucratic
cosmos were delegation on the grounds of complexity, local knowledge, and technical expertise.
283  See Hans Dichgans, ‘Zu viele Verfassungsrichter in Karlsruhe’ Christ und Welt (10 January 1969) 3.
284 Walter Seuffert, ‘Die Abgrenzung der Tätigkeit des Bundesverfassungsgerichts gegenüber der

Gesetzgebung und der Rechtsprechung’ (1969) 23 NJW 1369.

285  Hans Dichgans to Walter Seuffert, 13 August 1969, BAK N 1281/13 (Nachlass Dichgans).
286  See 25 BVerfGE 167 (1969).
106 Confidence, 1959–1971

Tellingly, the judgment Schmidt cited was a fundamental rights case. Both in the latter
1960s and in decades to come, much was forgiven the Court for the sake of its rights juris-
prudence. That jurisprudence dominated the Court’s docket (numerically at least), shaped
public perceptions of the Court, and animated the Court’s self-understanding. The Court
saw itself as a fundamental rights tribunal, and the justices worked hard to promote this
perception among the public at large. Throughout Gebhard Müller’s tenure as chief justice,
individual judges made fundamental rights the theme of extra-judicial speeches and essays,
many of them reported or reprinted in newspapers.287 Commentators on the Court’s fif-
teenth anniversary in 1966 observed that the Court’s work as guardian of basic rights had
penetrated popular consciousness.288 Though the justices and many others continued to
complain that the Court’s workload was unmanageable,289 the culprit of the Court’s vast
docket—the right of individual constitutional complaint—was popularly held sacrosanct.
A 1969 constitutional amendment enshrined the right to individual complaint, hitherto a
statutory right, in the Basic Law itself. It had long since, by some accounts, been enshrined
in the hearts of the people—the great emblem of Everyman’s right to legal vindication, the
Court’s greatest symbol of popular legitimacy.290 The Court was flooded each year by thou-
sands of individual complaints. Most were dismissed out of hand by screening quorums of
three judges each. A few hundred went to a full Senate for review.
Only rarely did these cases make headlines. But their very existence served as a coun-
terweight to the politically charged judgments that did. In its quiet stream of fundamental
rights decisions, the Court undertook the unromantic but indispensable business of guard-
ing the rights of ordinary Germans. Political quietude was a badge of judicial restraint.
The exceptions were seen as exceptions, and in the two most arresting exceptions—the
Television and Party Finance judgments—the Court emerged as a forceful restraint on state
authority (though in the Party Finance case, critics complained the Court had limited state
parties only to empower interest groups). These judgments confirmed that the Court would
not shy away from politically charged controversies, but their rarity suggested that neither
would the Court seek them out.
In the aftermath of the Television judgment, the Court conducted itself with dignity and
restraint—an Olympian aloofness from the partisan fray. Their conduct during the Party
Finance deliberations—in particular the extraordinary exclusion of Justice Leibholz—was
less fortunate in the public’s eyes. The decisions most disappointing to contemporaries were
the Spiegel and Emergency Laws judgments. Critics sniped that when the Court’s role as
vindicator of fundamental rights really counted, the justices lost their nerve. On the other

287  See, e.g., ‘Menschenrechte—heute aktuell’ Badische Neueste Nachrichten (3 December 1964)  (report-

ing a speech by Friedrich Wilhelm Wagner); Gebhard Müller, ‘Die Würde des Menschen ist unantastbar’ Der
Tagesspiegel (3 January 1965); Walter Schallies, ‘Das Menschenbild des Grundgesetzes’ Süddeutsche Zeitung
(9 Nov 1965) (reporting, u.a., speech by Karl Heck); Senta Ulitz-Weber, ‘“Bürger Jedermann” beschwert sich in
Karlsruhe’ Badische Neueste Nachrichten (12 January 1968) 8 (reporting a speech by Justice Wiltraud Rupp-von
Brünneck).
288 See, e.g., ‘Das Verfassungsgericht besteht 15 Jahre’ Die Welt (27 Sep 1966)  3; ‘Fünfzehn Jahre

Bundesverfassungsgericht’ Bulletin des Presse- und Informationsamtes der Bundesregierung (7 September

1966) 927.
289  See, e.g., ‘Verfassungsgericht überlastet’ Frankfurter Rundschau (29 December 1961);
‘“Verfassungsbeschwerden” nehmen überhand’ FAZ (20 February 1963)  6; ‘Die Karlsruher Richter
Überlastet’ Stuttgarter Zeitung (20 April 1963); HJ Rick, ‘Überlastete Richter’ Echo der Zeit (5 May 1963);
‘Bundesverfassungsgericht: zu spät’ Der Spiegel (17 June 1968) 52; ‘801 Verfahren sind anhängig geblieben. Aus
der Arbeit des Bundesverfassungsgerichts’ FAZ (30 January 1969).
290 See ‘Zu Füβen des Bundesverfassungsgerichts’ Badische Neueste Nachrichten (17 July 1965);

‘Beschwerdeführer sind willkommen’ Stuttgarter Nachrichten (29 March 1967) 16; ‘Das Bundesverfassungsgericht
steht jedermann offen’ Abendzeitung (Baden-Württemberg 29 March 1967); Senta Ulitz-Weber, ‘“Bürger
Jedermann” beschwert sich in Karlsruhe’ Badische Neueste Nachrichten (12 January 1968).
 Conclusion 107

hand, these were the first major judgments with published dissents, both of which were
­written with muted moral anger and in tart, incisive prose. Some justices were speaking truth
to power—including the power of their peers. Still, some observers worried the Court would
be bold only when boldness didn’t hurt. But parties of all stripes continued to take their
causes to Karlsruhe, and on the whole the Court’s written judgments suggested that their
pleas had at least been understood. Following the 1958 Pharmacy judgment, the Court con-
tinued to decide fundamental rights cases by employing a proportionality test that required
the justices to balance the comparative weight of competing constitutional values. The very
nature of the test required the Court to articulate clearly what was at stake on both sides.
The requirement that justices be appointed by a two-thirds parliamentary super-majority
fostered the promotion of centrist judges. The unavailability, before 1970, of signed dissents
created the appearance, if not the reality, of consensus. To many minds, the Court was an
organ of integration, an instrument of socio-political coherence. This was no small advan-
tage for the Court so long as the political culture of the Federal Republic was haunted by
fears of instability. But as the revolution in values progressed, many looked to the Court
for something more than integration and stability—something more than a conservative
bulwark against democracy’s excesses and a liberal rampart against its foes. A new breed of
progressive rebel wanted the Court to close the country’s deficits of legitimacy and moral
leadership. The Court supplied such vision for a jubilant moment in the Television judg-
ment, but failed to repeat the performance in the Emergency Laws decision. The latter deci-
sion, with its withering triumvirate dissent, also exposed fissures within the Court. The
veneer of unanimity was gone for good, and in years to come rhetorical jousting between
majority and dissenters would drive both groups to stronger stances. Such internal disputes
were occasioned by (and they exacerbated) an even more tremendous conflict between the
governing coalition under a new chancellor and the Court under a new chief justice. Both
sides of this broader confrontation were nothing if not bold. The resulting clash of visions
was tremendous. For the first time, the Court was assailed as a hindrance to democracy.
But as the Court concluded its second decade, all of this was but dimly foreseen.
Throughout the 1960s, criticism of the Court was sporadic, and the Court was more often
criticized for being overly political than for being insufficiently democratic. Some even
made the case that the Court was quintessentially democratic. In 1968, Heinz Laufer, a
political scientist, published the first systematic study of the Court’s role in the politi-
cal ­process. Laufer argued that, far from being undemocratic, the Court was an essen-
tial element of the state’s democratic nature—so much so that a two-thirds parliamentary
majority could not constitutionally abolish the Court by constitutional amendment.291
In  Laufer’s view, robust constitutional justice was not a limit on the second German
democracy, but a crucial constitutive element. Not only did the Court keep the cogs of
democracy churning; the values the Court protected made the Federal Republic a democ-
racy in a substantive sense. Democracy, in this view, was more than a system of governance
rooted in broad-based elections. It was an objective system of values centred in the sacro-
sanctity of human dignity and the muscular protection of individual rights. It was the free
democratic order defined and defended by the Constitutional Court.
Reviewing Laufer’s book for Die Zeit, Dieter Grimm recalled Ernst Forsthoff’s contention
that, in Bagehotian terms, the Court represented an aristocratic rather than a democratic
element of the state.292 In most cases, Grimm argued—and especially in political cases—the

291  Laufer (n 113).

292  Dieter Grimm, ‘Wie mächtig ist Karlsruhe? (Rezension)’ Die Zeit (23 May 1969) 63.
108 Confidence, 1959–1971

justices possessed considerable, and uncontrollable, room for manoeuvre. The discretion-
ary exercise of such power by a handful of appointed jurists was hardly the summit of demo-
cratic governance, traditionally understood. Laufer’s insistence that constitutional justice
was of the essence of German democracy rested on a particular vision of that democracy—a
vision that was impeccably liberal, thick with values, and in a deep sense conservative. The
broad diffusion of that vision in years to come represents the Court’s profoundest impact on
the history of the Bonn Republic. During the 1970s, that vision was tested as never before.
 3
Confrontation, 1971–1982
We wish to dare more democracy…. We do not stand at the end of our democracy; we
have only now truly begun.
—Willy Brandt (1969)1

On the theme of ‘Democracy’ I wish only to say: so long as we are not incessantly aware
of the difference between liberalism and democracy, we will argue endlessly, drift into
‘eternal discussions’ …. The reality of political development tends obviously toward the
‘end’ that either democracy destroys liberalism or liberalism destroys democracy—or
shall we say ‘overrules’.
—Carl Schmitt to Wilhelm Hennis (1971)2

I fear that we stand at the threshold of … an epoch of the ‘politicization of jurispru-

dence’, the likes of which in Germany—with the exception of the GDR—has never been
seen before.
—Alfred-Carl Gaedertz to Gerhard Leibholz (1972)3

Introduction
In 1979, as the Federal Republic commemorated its thirtieth birthday, Friedrich-Wilhelm
Dopatka, a jurist, took stock of the Constitutional Court’s role in the Republic’s societal and
political development.4 He had a very straightforward story to tell. In the first phase of the
Republic’s history, corresponding roughly with the 1950s, the Court made ‘an enduring
contribution to the development of democracy in the Federal Republic’.5 During the second
phase, corresponding roughly with the 1960s, the Court had been distinguished largely for
its political inactivity—especially during the years of the grand coalition, when both major
parties held power and neither had reason to take cases to Karlsruhe.6 The 1970s ought to
have been a period of further high-court retreat, but instead the opposite had happened.7 The
Court had grown increasingly activist just when the country was outgrowing—or trying to
outgrow—the Court. The change of power in 1969 from a grand coalition to a Social–Liberal
coalition had proven the viability of the Federal Republic as a modern democracy capable of
smooth transitions between government and opposition.8 But just when the Republic was
reaching maturity the Court became more meddlesome than ever, throwing into bold relief
the fact that the 1949 framers had provided too much patriarchal guidance and too little

1  Presse- und Informationsamt der Bundesregierung, Bundeskanzler Brandt. Reden und Interviews, 1st edn

(Bernecker 1971) 13, 30.

2  Stephan Schlak, Wilhelm Hennis. Szenen einer Ideengeschichte der Bundesrepublik (CH Beck 2008) 162.
3  Alfred-Carl Gaedertz to Leibholz, 18 January 1972, Bundesarchiv-Koblenz (BAK) N 1334/3 (Nachlass

Gerhard Leibholz).
4 Friedrich-Wilhelm Dorpatka, ‘Zur Bedeutung des Bundesverfassungsgerichts in der politischen und

gesellschaftlichen Entwicklung der Bundesrepublik 1951 bis 1978’ in Wolfgang Dauebler and Gudrun Kuesel
(eds), Verfassungsgericht und Politik. Kritische Beitraege zu problematischen Urteilen (Rowohlt 1979).
5 ibid 42. 6 ibid 42–44. 7 ibid 44–48. 8 ibid 47.
110 Confrontation, 1971–1982

popular rule.9 The Constitutional Court highlighted the problem, wielding its awesome
power most forcefully just when it had most clearly outlived its usefulness.
Dopatka’s narrative was overly simplified, but he was not alone in his discontent. The late
1970s witnessed an unprecedented flood of popular and scholarly literature critical of the
Constitutional Court. In one sharp essay, Konrad Zweigert, one of the Court’s founding
justices, asked whether the Court was ‘an institution with a future’.10 Zweigert’s answer,
for all the Court’s recent offences, was a chastening yes. But it was striking that a former
judge who had been present at the Court’s creation would ask publicly whether its end was
nigh. This chapter explains how the Court came to such a pass; the next chapter tells how
it so swiftly recovered. To understand the crisis and the resolution, one must begin at what
is often characterized as the Federal Republic’s new beginning—the accession to power of
a Social–Liberal (SPD/FDP) government under Chancellor Willy Brandt in the fall of 1969.

A.╇Republican refounding?
It was a season of superlatives, cast by contemporaries as an historic caesura—a ‘refound-
ing (Umgründung) of the Republic’, in one historian’s evocative phrase.11 Brandt himself
moved heaven and earth to foster this impression, cultivating what Wilhelm Hennis later
called ‘the myth of a second Stunde Null’.12 Brandt intimated that the republican founding
in the aftermath of the first ‘zero hour’ following 1945 had been tragically incomplete. The
second founding would be more thorough. Brandt’s election, the chancellor told a gaggle
of foreign journalists, had elevated him to the leadership ‘not of a conquered, but of a lib-
erated Germany’. Only now, he added modestly, had Hitler ‘finally lost the war’.13 Brandt
proclaimed a season of renewal—political and economic, legal and societal, cultural and
moral. Whereas Adenauer, at the summit of his power, pledged to eschew experiments,
Brandt, at the outset of his power, promised experiments of every kind.14
Adenauer himself did not live to see those experiments; he died in April 1967 at the age
of ninety-one. The first postwar chancellor was honoured with a magnificent state funeral
and a solemn Pontifical Mass in the Cologne Cathedral. Thousands lined the streets to pay
their last respects. As with the state service for Winston Churchill held two years earlier
in St. Paul’s cathedral, a nation had arisen to pay final homage to a leader whose views and
values it was swiftly shedding. The period between Adenauer’s death and Brandt’s acces-
sion witnessed the sizzling and fizzling of the student movement later immortalized in
‘the myth of 1968’. The student movement, and the social transformation it reflected and
fostered, was a precondition for the Social–Liberal coalition’s coming to power. So too, was
the movement’s collapse. The emergency laws formed the focal point of the students’ oppos-
ition, and the failure of that opposition—a failure solidified in the 1970 judgment of the
Constitutional Court—helped still the wind in the movement’s sails. The Soviet crushing
of ‘Prague Spring’ in August 1968, and the founding of a new German communist party

9╇ibid.
10╇Konrad Zweigert and Hartmut Dietrich, ‘Bundesverfassungsgericht—Institution mit Zukunft’? in
Verfassungsgericht und Politik (n 4) 11.
11╇ Manfred Görtemaker, Geschichte der Bundesrepublik Deutschland (CH Beck 1999) 475. For a critical view

of this perspective, see Andreas Rödder, Die Bundesrepublik Deutschland, 1969–1990 (Oldenbourg 2004).
12╇ Wilhelm Hennis, ‘Machtwechsel—oder der Versuch einer zweiten Gründung’ (1983) 14 Zeitschrift für

Parlamentsfragen 160.
13╇ Willy Brandt, Begegnungen und Einsichten: die Jahre 1960–1975 (Hoffmann and Campe 1976) 296.
14╇ As set forth in his restlessly ambitious first government declaration of 28 October 1969. See Presse- und

Informationsamt der Bundesregierung, Bundeskanzler Brandt. Reden und Interviews, 1st edn (Bernecker 1971)
13, 30.
 Introduction 111

the following month,15 triggered a crisis of identity within the New Left, now stripped of its
minimal foundation for consensus. Some within the movement hinted at a ‘hot summer’
in 1969 (including, perhaps, an assault on the judiciary, which Leftists still saw as a haven
for former Nazis), but these gestures never materialized. After the autumn of 1968, the
protest movement—the self-styled ‘extra-parliamentary opposition’—splintered. Its larg-
est segment returned to school or work, supporting the Social–Liberal ascension in 1969
and, in many cases, joining the SPD. Their support, though, was conditional. They wanted
reform—swift and sweeping.
In an important sense, Brandt became chancellor not thanks to the students but in spite
of them.16 The SPD spent much of 1969 distancing itself from the students, who aroused
distrust, and often anger, among many sections of society. The group Brandt really needed
to persuade was not the APO but the FDP, his potential coalition partner. He barely
succeeded, and at the last possible instant. At the Bundestag elections of 28 September
1969, the Union parties remained, comfortably, the largest parliamentary faction, poll-
ing 46.1 per cent of the vote—a loss of just 1.5 per cent vis-à-vis 1965. But the SPD’s gain
was greater than the Union’s loss; it grew by 3.4 per cent to 42.7 per cent, the party’s best
postwar showing. The real loser was the FDP, which could little afford to lose anything.
The Liberals dropped by 3.7 per cent down to 5.8 per cent, barely clearing the 5 per cent
hurdle and barely outpolling the far-Right NPD, which, after ominous successes in local
elections and considerable sabre-rattling during the general election, was narrowly kept
out of Parliament with 4.5 per cent of the vote. Nearly everyone—including most Social
Democrats—assumed the grand coalition would continue in power, and that Kiesinger
would remain chancellor.
Kiesinger himself was certain that he had won; his office was flooded with congratula-
tory telegrams from around the world, including from Richard Nixon’s White House. But
Brandt cut a midnight deal—likely it was well after midnight—with the FDP. Combined,
the SPD and FDP had won 48.5 per cent of the vote—not a proper majority but more than
the Union’s 46.1 per cent and enough (barely) on which to form a government. In the small
hours of 29 September 1969, the two parties agreed to govern together.
On 21 October, Brandt was elected chancellor with 251 out of 495 votes cast in the
Bundestag. It was only two votes more than the minimum required to become chancellor.
Kiesinger, much embittered, mocked the new government as a ‘mini-mini coalition’. Brandt
parried that he had won by a tremendous margin compared with 1949, when Adenauer
became chancellor by a single vote—his own. But a ready wit could not hide the fact that
Brandt had become head of an ideologically divided government with a razor-thin major-
ity. Nor could it quelch discontent within the chancellor’s own party. Herbert Wehner and
Helmut Schmidt—after Brandt the SPD’s two biggest beasts—were appalled at the wreck-
less bravado of Brandt’s nocturnal negotiations and unilateral assumption of power. They
bided their time in plush cabinet posts, but exacted vengeance by and by.17

15  This party christened itself the Deutsche kommunistische Partei (DKP) rather than the Kommunistische

Partei Deutschland (KPD). The party hoped to avoid its predecessor’s fate by pledging allegiance to the Basic Law.
Popular and official debates considered whether to seek another high-court ban. Foreign policy considerations,
if nothing else, persuaded the grand and Social–Liberal coalition governments against it.
16  See Görtemaker (n 11) 491.
17  The story of Brandt’s election has been told many times. The account given here has benefited most from

Arnulf Baring, Machtwechsel:  die Ära Brandt-Scheel (Deutsche Verlags-Anstalt 1982) 27–194; Görtemaker
(n 11) 475–525; Eckart Conze, Die Suche nach Sicherheit. Eine Geschichte der Bundesrepublik Deutschland von
1949 bis in die Gegenwart (Siedler 2009) 361–416; and Peter Merseburger, Willy Brandt, 1913–1992: Visionär und
Realist (Deutsche Verlags-Anstalt 2002) 486–577.
112 Confrontation, 1971–1982

Brandt’s election was hardly a plebiscitary acclamation. But the new chancellor treated
it like an irresistible mandate. Brandt’s formal assumption of power was as bold and dra-
matic as his acquisition of it had been parlous and slim. His first government declaration,
delivered to the Bundestag on 28 October 1969, was nothing less than the announcement
of a new era. Brandt proclaimed the Federal Republic’s first authentic, popular constitu-
tional moment. Adenauer’s Republic had been a constrained one—patriarchal and authori-
tarian, rather than popular and plebiscitary. Brandt was the self-appointed herald of a
bolder age, the champion of a democracy more open and more mature, more popular and
participatory—in short, a real democracy.
Brandt paid passing tribute to a few forebears, ecumenically invoking—‘as stand-ins
for many others’—the founding fathers of the three major parties: Konrad Adenauer, Kurt
Schumacher, and Theodor Heuss. ‘No one will deny, doubt, or disparage the achievements
of the last two decades’, Brandt declared. ‘They have become history’, he added—ambiguous
praise that both honoured Brandt’s antecedents and interred them.18 Over two decades, the
Federal Republic had proved itself capable of accommodating change, including this most
significant change: the peaceful transfer of power. Now it was time for something new—a
more robust programme of reform, a more engaged brand of democracy. ‘We wish to dare
more democracy’, Brandt intoned. His government would hazard the project of democ-
ratization not merely in parliamentary hearings but in a national conversation in which
‘every citizen is given the possibility to participate in the reform of state and society’.19
Co-determination (Mitbestimmung) and co-responsibility (Mitverantwortung) would be
the watchwords of the new dispensation. ‘This government seeks conversation’, Brandt
noted—apparently with everyone.20
That conversation, he promised, would yield sweeping reforms in every arena
of government policy. In the foreground stood foreign policy, specifically ‘the rela-
tionship between the two parts of Germany’. Brandt’s government hoped to shift the
position of the Federal Republic vis-à-vis its Eastern neighbour from ‘a regulated
next-to-one-another to a with-one-another’ (über ein geregeltes Nebeneinander zu
einem Miteinander). The chancellor stressed that this Delphic phrase meant only the
continuation of policies pursued by the grand coalition, in which Brandt had served
as foreign minister. He also assured his listeners that formal diplomatic recognition
of the GDR was out of the question. But he unsettled Union parliamentarians with
another tenebrous pronouncement, whose arguendo assumption spoke louder than its
qualification. ‘Even if two states exist in Germany’, he said, ‘they are not, with respect
to one another, foreign countries; their mutual relations can only be of a particular
kind’. 21 Just what kind was determined by Brandt’s new Eastern policy (Ostpolitik),
which formed the signature of the first Brandt government and the bête-noir of the
Union opposition. One imposing Unionist hoped to make the Constitutional Court an
instrument of that opposition.
On the domestic front, Brandt placed education at the centre of his government’s reform
agenda.22 Here too the government’s ambitions would be shaped and constrained by appeals
to the Constitutional Court. The same would hold for Brandt’s declared intention to reform
fields as disparate—and as central—as gender equality23 and labour relations.24 More often
than the new government could possibly have predicted, the road to reform would run
through Karlsruhe.

18  Verhandlungen des Deutschen Bundestages. Stenographische Berichte, vol 71 (1969) 20. 19 ibid.
20 ibid 20–21. 21 ibid 21. 22 ibid 26. 23 ibid 29. 24 ibid 28–29.
 Introduction 113

Brandt’s inaugural declaration was untroubled by such thoughts. In a ringing peroration,

he returned to the theme of democratic renewal. ‘The government can only work success-
fully in a democracy’, he declared, ‘when it is supported by the democratic engagement of
the citizenry…. We seek no admirers; we need people who critically think with us, decide
with us, and carry responsibility with us…. We therefore seek a conversation with all who
labour for this democracy’.25 This democracy, Brandt suggested, was something qualita-
tively new. He had never believed those who feared that the second German democracy
would go the way of the first. He believed it now less than ever.26 This was because the second
German democracy—with a charismatic man of destiny to lead it—had only just arrived.
‘We do not stand at the end of our democracy’, Brandt closed, ‘we have only now truly
begun’.27 Redeunt Saturnia regna.
Brandt’s early days in office were marked by breathless activity—a bid to impress voters
with visible results and to buoy support for a government with a precarious popular base.
It was a time of tremendous optimism. Over the previous year the West German econ-
omy had grown by 7.5 per cent, the best annual outcome since the halcyon years of the
Wirtschaftswunder. As of 1970, unemployment stood at less than 1 per cent. This economic
upturn followed a jarring slump in 1966/67, the overcoming of which was credited in many
circles to the macroeconomic policies of the grand coalition. Brandt proposed to persist in
giving such direction, and expected similarly felicitous results. The government extrava-
gantly promised expensive reforms. In the event, souring economic conditions—even
before the oil crisis of 197328—would rob the government of the capacity to make good
on those promises. As of late 1969, however, the possibilities for reform—for a centralized
government shaping a splendid socialist future—seemed endless. The new cabinet’s efforts
were coordinated as never before. Its several departments were linked under the manage-
rial supervision of Brandt’s master technocrat and chief counsellor, Horst Ehmke, a once
and future advocate before the Constitutional Court. Wehner and Schmidt writhed under
Ehmke’s meddling (here, too, they would have their revenge). But Ehmke, the consummate
and indefatigable details man, proved indispensable to the relaxed and visionary Brandt.
Ehmke infused the chancellor’s office with unprecedented importance. He even proposed a
new building commensurate with the gravity of the office.29

B.╇The coming conflict

While the country’s executive chieftains were designing a new executive palace, the heads
of the West German judiciary were settling into a new building of their own. After twenty
years in the cramped quarters of Prince Max Palace, the Constitutional Court moved
in autumn 1969 to a newly constructed building near the Karlsruhe botanical gardens.
The building, by design, did not look like a courthouse—no Grecian columns or impos-
ing statuary, no freizes or flutings or architraves. Instead the structure was open and
sprawling—symbolically inviting Citizen Everyman to bring his complaints there. Large
glass windows denoted democratic transparence. To the architecturally uninitiated, how-
ever, it looked like a train station—an apt resemblance, some joked, that embodied a pair

25╇ibid 33. 26╇ibid. 27╇ibid 34.

28╇ Many West Germans were rattled by a 1972 report from the Club of Rome entitled ‘The Limits of Growth’.
See Dennis L. Meadows and others, Die Grenzen des Wachstums. Bericht des Club of Rome zur Lage der Menschheit
(Deutsche Verlags-Anstalt 1972); see also Mihajlo D.  Mesarović and others, Menschheit am Wendepunkt
(Deutsche Verlags-Anstalt 1974); Dennis Gabor and others (eds), Das Ende der Verschwundung. Zur materiellen
Lage der Menschheit (Deutsche Verlags-Anstalt 1976).
29╇ The building wasn’t finished until 1976; by then Ehmke was out of the cabinet.
114 Confrontation, 1971–1982

of political bromides: ‘All roads lead to Karlsruhe’, and ‘Karlsruhe works the switches for
Bonn’.30 With an ambitiously reformist government in Bonn, and with mounting polari-
zation between government and opposition, observers expected appeals to the Court. No
one, however, anticipated fully the scope or intensity of the coming confrontation between
the harbingers of a new constitutional order and the institutional guardians of the old one.
Against Brandt’s proclamation of a constitutional moment, the Court asserted the preroga-
tives of a constitutional tradition. Brandt called for a democracy that was participatory,
process-based, and plebiscitary; the Court safeguarded a democracy that was constrained,
value-laden, and paternalist.
The results of the clash were equivocal. The achievements of the Social–Liberal coalition
were considerable, and when its confrontation with the Court reached its crisis, the Court
backed down. The retreat, however, was only temporary; perhaps it was merely tactical. In
any case, when the crisis came, the constitutional moment had passed. The fiercest sequence
of confrontations between Court and coalition came after Brandt’s resignation and replace-
ment by the pragmatic Helmut Schmidt; after the world oil crisis and subsequent slump
had denied the government the material preconditions of reform; and after the scourge of
domestic terrorism had left the nation longing for security and stability—for the kind of
watchful and integrative functions long ascribed to the Constitutional Court. As a consti-
tutional matter, Brandt’s promise of sweeping transformation fell short. Adenauer was dead
and gone, but the second German democracy remained, in part, a patriarchal democracy.
The Constitutional Court had become its patriarch.

I.  Departure of the Giants

The Federal Constitutional Court is two years younger than the Federal Republic. One
consequence of this age difference has been that changes in the Court’s composition do
not coincide with national elections. Throughout the 1960s and early 1970s, turnover
in the Court’s personnel fell at the midpoint between Bundestag elections, with major
shifts in 1959, 1963, 1967, and 1971—in each case two years after a federal election. Not
by accident, the Court appointments in 1971 were as politically fraught as the Bundestag
election of 1969 was politically momentous. Two years of restless government reform
were accompanied by two years of persistent threats to attack those reforms in Karlsruhe.
By 1971, several politically charged cases were already pending before the Court. Others
were sure to follow.
From the beginning of the Court’s history, filling vacant seats was a politically contested
matter. Legislative obstruction delayed the filling of two posts vacated during the European
Defence Community controversy in the early 1950s, and we have witnessed the row that
erupted when Martin Drath was denied reappointment in 1963. With each large turnover
in the Court’s membership, the political stakes seemed to climb, and the public’s attention
to sharpen. Never had the stakes been so high, or popular interest so intense, as when six
seats fell vacant in 1971.
The political environment was polarized as it had rarely been since the early 1950s.
Many rightly predicted that the CDU opposition would subject prized Social–Liberal
initiatives—in both domestic and foreign policy—to constitutional challenge. All major
parties wanted ‘reliable’ justices to field those challenges when they came. This impulse,

30  See Hans Seiler, ‘Karlsruhe stellt die Weichen für Bonn’ Die Welt (23 September 1969) 31.
 Departure of the Giants 115

combined with the requirement that high-court nominees be approved by a two-thirds

majority, produced a wondrous tussle within the responsible parliamentary committees.
Some of the departing justices were genuine giants: Gerhard Leibholz and Erwin Stein,
who had been with the Court since its founding, and Chief Justice Gebhard Müller, who
had presided over the Court nearly twice as long as his two predecessors combined. With
the departure of Leibholz and Stein, only three original justices remained—Theodor
Ritterspach on the First Senate, and Hans Rupp and Willi Geiger on the Second. The terms
of Gregor Geller (Second Senate) and Wiltraut Rupp-von Brünneck (First Senate), both
appointed in 1963, had also expired, as had that of the Court’s former director, Walter Rudi
Wand, who in 1970 was tapped to finish the term of Hans Kutscher, who had joined the
European Court of Justice in Luxembourg.
After only a year in the Court, it seemed certain Wand would be reappointed. Many
assumed that Justice Rupp-von Brünneck was a shoo-in for reappointment as well. In addi-
tion to being an eminent jurist, she was now the Court’s only woman. (She was also mar-
ried to Hans Rupp of the Second Senate, providing some social pressure to keep her in the
Court). The other four vacancies, however, would be filled with new judges. These would be
the first judges appointed under a new regulation, in force since January 1971, whereby all
justices would serve a single, non-renewable term of twelve years. The new regulation also
imposed an age limit. The new justices would serve for a dozen years or until they turned
sixty-eight, whichever came first. Helmut Simon, who replaced Wolfgang Zeidler on the
First Senate in 1970, was the last justice to escape the limit. He would serve, with great influ-
ence, for seventeen years.
The parliamentarians who haggled to fill the vacancies did not, by most contemporary
accounts, drape themselves in glory. Friedrich Karl Fromme reported in the Frankfurter
Allgemeine Zeitung that a ‘poisonous, crisis-ridden, and often unworthy atmosphere’ per-
meated the proceedings.31 Ernst Müller-Meiningen of the Süddeutsche Zeitung found the
affair despicable.32 Other papers opined that the appointments were conducted ‘in bad
form’,33 that the process was ‘unfair and tactless’,34 damaging to the Court’s reputation
and dangerous for its future.35 With the Court on the cusp of what was sure to be a severe
test of its independence and integrity, the parties in Parliament had treated judgeships like
political fiefdoms. They had made the appointments process a farce of factional squabbling

31  Friedrich Karl Fromme, ‘Der gefährliche Kuhhandel ums Bundesverfassungsgericht’ FAZ (4 November

1971).
32  Ernst Müller-Meiningen, ‘Bundesverfassungsgericht in Gefahr’ Süddeutsche Zeitung (11 November 1971).
33  ‘Schlechter Stil’ Christ und Welt (Bonn, 22 October 1971).
34  ‘Unfair und taktlos’ Stuttgarter Zeitung (Stuttgarter, 23 October 1971).
35  For a sampling of critical coverage in the contemporary press, see ‘Harte Auseinandersetzung um die Sitze

im Verfassungsgericht’ FAZ (25 May 1971); Friedrich Karl Fromme, ‘Jetzt ist das Verfassungsgericht am Zug’ FAZ
(12 June 1971); ‘Auseinandersetzung um Verfassungsrichter’ FAZ (9 July 1971) 4; Hellmuth Rieber, ‘Karlsruhe
will keine pensionierten Politiker’ Frankfurter Rundschau (7 August 1971); Robert Leicht, ‘Das höchste Gericht
im Spiel der Parteien’ Süddeutsche Zeitung (1 October 1971); Werner Birkenmaier, ‘Gefahr für Karlsruhe’?
Stuttgarter Zeitung (5 October 1971); Oskar Fehrenbach, ‘Das Tauziehen um die Verfassungsrichter (Interview
mit Friedrich Vogel)’ Stuttgarter Zeitung (16 October 1971); ‘Miβachtung des Bundesverfassungsgerichts’
Süddeutsche Zeitung (16/17 October 1971); ‘Schaden für Karlsruhe’ Frankfurter Rundschau (21 October
1971); ‘Schlechter Stil’ Christ und Welt (22 October 1971); Bruno Waltert, ‘Vergiβt Bonn das Ansehen des
Verfassungsgerichts’? Die Welt (23 October 1971); ‘Unfair und taktlos’ Stuttgarter Zeitung (23 October 1971);
Friedrich Karl Fromme, ‘Der gefährliche Kuhhandel ums Bundesverfassungsgericht’ FAZ (4 November
1971); Hellmuth Rieber, ‘Karlsruhe: Schaden durch Richterstreit’ Frankfurter Rundschau (4 November 1971);
‘Unwürdiger Streit’ Stuttgarter Zeitung (4 November 1971); ‘Bonner Kuhhandel um Karlsruher Posten’ Die
Welt (5 November 1971); Gerhard Ziegler, ‘Wie man Autorität zerstört’ Frankfurter Rundschau (10 November
1971); Bruno Waltert, ‘Das Gerangel um die Verfassungsrichter muβ enden’ Die Welt (11 November 1971); Ernst
Müller-Meiningen, ‘Bundesverfassungsgericht in Gefahr’ Süddeutsche Zeitung (11 November 1971); ‘Tauziehen.
Richterwahl ohne Stil’ Rheinischer Merkür (12 November 1971).
116 Confrontation, 1971–1982

and partisan horse-trading (‘cow dealing’ [Kuhhandel] in the even less flattering German
vernacular). Many whose names circulated as potential nominees were party loyalists
rather than distinguished jurists. The Court’s long-time admirers smarted that the robes
of Leibholz and Müller might be worn by juristic pigmies beholden to party interests and
dependant on their law clerks. Wilhelm Hennis, among others, roared that tenure on the
Constitutional Court should not be a sinecure bestowed by grateful parties for services
rendered in Parliament.36
What was the upshot of this odious animal swapping? With Wand’s reappointment
taken for granted, the parties originally planned to let the CDU nominate three candidates
and the SPD two, with Walter Seuffert becoming chief justice as a consolation to the SPD.
Even though the CDU now formed itself in opposition, it was afforded an extra appoint-
ment because five of the six justices whose terms expired in 1971 had been CDU nominees.
But the Union parties had grown accustomed to appointing the chief justice, and
they ultimately traded the right to propose an additional justice for the right to name
Müller’s successor.37 Some Unionists thought this daft. The chief justice was an impor-
tant figurehead, but he only voted once. So the Union tried to switch back, only to find
the SPD disinclined. Meanwhile, the SPD’s junior partner, the FDP, clamoured for the
right to nominate one of the justices—something the party hadn’t done since proposing
Hermann Höpker-Aschoff for the Court’s inaugural presidency twenty years earlier. The
SPD hummed and hawed, but finally consented. In the end, all parties agreed that the CDU
would nominate two justices, including the new president; the SPD would also nominate
two; and the FDP one.
Initially, the FDP’s one choice was Emmy Diemer-Nicolaus, who had represented the
party in the Bundestag since 1957 and in the Baden-Württemberg Landtag before that.
She had studied law in the 1930s, but hadn’t held a strictly ‘legal’ job for over twenty years.
Nor had she published articles on legal topics. She was also nearly sixty-two, which meant
she would reach the new age limit after a term of only six years. Many complained that
her candidacy was a political plum. Some who complained were Christian Democrats who
worried quietly that Diemer-Nicolaus, a vocal champion of gender equality, would vote to
sustain a liberalizing reform—then being debated—of the country’s abortion laws. But the
CDU had also tapped one of its own, nominating Ernst Benda, a forty-six-year-old mem-
ber of the Bundestag, to be the new chief justice. When the Union mused about blocking
Diemer-Nicolaus’s nomination, the coalition parties retorted that, if that happened, the
SPD and FPD would unite to block Benda’s. The CDU wouldn’t flinch. Diemer-Nicolaus
broke the impasse by withdrawing her nomination. The lustre of becoming the third female
justice had dimmed amid a barrage of public charges that she was unfit for the post.
With Diemer-Nicolaus’s retraction, Justice Rupp-von Brünneck’s reappointment became
inevitable. The SPD didn’t dare incur responsibility for an all-male Court. Reelected on
12 November 1971, Rupp-von Brünneck would remain with the Court until her death in
office six years later at age sixty-five. In the meantime, she wrote or joined several of the
most momentous dissenting opinions in the Court’s history. The SPD’s other nominee was
Martin Hirsch, who since 1961 had been one of the party’s legal experts in the Bundestag.
Of all the politicians who have ever sat in Karlsruhe, Hirsch proved least successful at sub-
duing party allegiance and adapting to the judicial role. After the Diemer-Nicolaus nomi-
nation failed, the FDP opted for Joachim Rottmann, a longtime official in the defence and
interior ministries who taught law on the side. In addition to Benda, the CDU nominated

36  Wilhelm Hennis, ‘Verdiente Abgeordnete—gute Richter’? Süddeutsche Zeitung (6 November 1971).

37  See ‘Die CDU stellt weiter den Präsidenten des Bundesverfassungsgerichts’ FAZ (18 June 1971) 4.
 Fundamental Rights 117

Hans-Joachim Faller, a veteran of the Federal Court of Justice, to fill one of six seats reserved
for members of the federal judiciary.
To many observers, the new crop was a disappointment. Earlier in 1971, Theodor
Eschenburg lamented what he saw as a steady drop in the quality of the Court’s personnel
since the remarkable class of 1951.38 Eschenburg feared that, given parliamentarians’ pro-
clivity for partisan horse trading, the coming year portended further decline. Many now
saw Eschenburg’s fears confirmed. Though several justices taught law on the side or dab-
bled in legal scholarship, with Leibholz’s departure none was a tenured professor of public
law. Of the four new justices, three were professional politicians—‘full-blooded politicians’
in the idiom of the critical press.39 Parliament, it seemed, appointed jurists only when it
absolutely had to. These critics forgot that many of the former judges they lionized had
also been ‘full-blooded politicians’—Hermann Höpker-Aschoff and Rudolf Katz, as well
as the newly pensioned Erwin Stein and Gebhard Müller. Fair or not, contemporary press
coverage conveyed an unmistakable perception of decline. The Court, critics fretted, had
diminished in both stature and independence, and had increased in partisan rancour—and
this on the threshold of what looked to be the most politically controversial season of the
Court’s history.
Ernst Benda, the Court’s new chief justice, was sufficiently self-aware to sense that the
public perceived a difference between himself and his forebears. Benda knew that he radi-
ated less gravitas than the flinty Höpker-Aschoff, the otherworldly Josef Wintrich, or the
ascetic Gebhard Müller. Benda was young, and felt younger. He was happiest behind the
wheel of a sports car, his foot on the gas, or at the helm of a yacht, the wind in his sails.
A Berliner to the bone, Benda joined the infant CDU at age twenty. In 1957, Benda, then
thirty-two, moved from the Berlin state Parliament to the Bundestag. In Parliament, Benda
kept a low profile, but with one towering exception. During the 1965 debates over extend-
ing the statute of limitations for Nazi murders, Benda made the floor flash with lightning
eloquence and moral anger. The speech was a highpoint of postwar parliamentary oratory.
It made Benda, however briefly, something of a national hero. Benda’s role (as interior min-
ister in the grand coalition) in crafting the Emergency Laws had rather the opposite effect.
Still, it was clear to all that Benda was a rising star in the CDU firmament, certain to return
to the cabinet should the Union return to power.
The call to Karlsruhe silenced such ambitions and put Benda’s thriving Berlin law practice
on hold. As we have seen, Benda was not the first chief justice to chafe at having to exchange
the velocity of the city for the somnolence of Karlsruhe. He was not the first to demur at the
initial invitation, nor the first to accept it with a heavy heart. In the Frankfurter Allgemeine
Zeitung, Friedrich Karl Fromme described the new chief justice as a man armed with a
supercilious reserve and a gift for self-irony.40 But these were external defences. Within, as
events would show, Benda was equal parts pugnacity and panache.

II. Fundamental Rights
The six justices appointed or reappointed in 1971—Ernst Benda, Wiltraut Rupp-von
Brünneck, Helmut Simon, Martin Hirsch, Rudi Wand, and Joachim Rottmann—would
stand at the centre of the Court’s most intense political conflicts since the early 1950s.

38  Theodor Eschenburg, ‘Nur zweite Wahl nach Karlsruhe?’ Die Zeit (26 February 1971).
39 See ‘Vollblutpolitiker’ Frankfurter Rundschau (9 November 1971); Friedrich Karl Fromme, ‘Wenn
“Vollblutpolitiker” die Verfassung hüten’ FAZ (9 June 1973).
40  See Friedrich Karl Fromme, ‘Nach Karlsruhe mit genügend Selbstironie’ FAZ (13 November 1971) 2.
118 Confrontation, 1971–1982

They would clash swords with one another and with the Republic’s leading politicians.
As they took or resumed office, however, the Court’s immediate docket was marked
by considerable continuity with the previous decade. As usual, the vast majority of
cases in the Court’s inbox were fundamental rights cases arising from individual com-
plaints. Most of these were routine, but some led to doctrinally momentous decisions.
Aggressive holdings in these cases would, when followed in other contexts, prove polit-
ically explosive. The first of them involved a novel by the famous son of a more famous
father.

A. The Mephisto Judgment and the dignity of the dead

‘All the characters of this book’, wrote Klaus Mann in a coda to his novel, Mephisto, ‘repre-
sent types, not portraits’. The distinction was a fuzzy one. The type Mann had in mind, as
he explained in a subsequent memoir, was ‘the abject type of the treacherous intellectual
who prostitutes his talent for the sake of some tawdry fame and transitory wealth’.41 Mann
‘thought it pertinent, indeed necessary, to expose and analyse’ this type, the most appalling
exemplar of which was Gustaf Gründgens, Mann’s quondam friend, erstwhile collaborator
and, from 1926 to 1929, the husband of Mann’s sister, Erika. ‘I visualize my ex-brother-in-
law’, Mann wrote, ‘as the traitor par excellence, the macabre embodiment of corruption
and cynicism. So intense was the fascination of his shameful glory that I decided to portray
Mephisto-Gründgens in a satirical novel’.42
Mann’s aim, then, was to expose a type by portraying a man. But the resulting novel,
he insisted, was a depiction of the type, not a portrait of the man. Indeed, Mann added,
the object of his portrait was not quite a man. Hendrik Höfgen, Mephisto’s protagonist,
‘especially lacks the moral qualities, which are usually summarized under the concept of
“character”. Instead of “character” there is, with this Hendrik Höfgen, only ambition, van-
ity, vainglory, affect. He is not a man, only a Komödiant [comedian/actor]’.43 Were Höfgen
and Gründgens one and the same? ‘Not quite’, Mann answered. Mephisto was ‘not about the
individual case, but about the type’.44
The fictive type and the historical individual had much in common—their physical
appearance, their thespian powers, their tortured biographies. Gründgens, like Höfgen,
was a brilliant actor, renowned for his representation of Mephistopheles in Goethe’s Faust.
Gründgens enjoyed a dizzying rise after the Nazi seizure of power in 1933. Ultimately,
with the patronage of Hermann Göring, Gründgens became head of the state playhouse in
Berlin, a post from which, with a muted reference to his homosexuality, Gründgens offered
to resign after the 1934 arrest and murder of Ernst Röhm.45 Göring refused to accept his
resignation, and Gründgens remained intendant of the playhouse until 1937, after which,
until 1945, he headed the Prussian State Theatre. In 1936, the year of Mephisto’s first publi-
cation, Göring named Gründgens to the Prussian council of state (Staatsrat). Klaus Mann’s
Mephisto suggested nothing about Gründgens’s sexual orientation (Mann’s own homo-
sexuality was a theme of many of his novels); instead, it portrayed Höfgen as a deviant and
sadomasochist.

41  Klaus Mann, The Turning Point: 35 Years in this Century (LB Fischer 1942) 281. 42 ibid.
43  Klaus Mann, Die Wendepunkt. Ein Lebensbericht (Rowohlt 1948) 334. 44 ibid.
45  Röhm, who was not openly gay but whose homosexuality was privately known to Hitler, was commander of

the Sturmabteilung (SA), the Nazi militia. Hitler came to see Röhm as a rival, ordered Röhm’s arrest and execu-
tion as part of the ‘night of long knives’ that purged the SA leadership between 30 June and 2 July 1934. Hitler
alluded to Röhm’s homosexuality in his public explanation of the purge.
 Fundamental Rights 119

The novel was written in exile and published abroad.46 The novel’s original publisher,
the Dutchman Emanuel Querido, was later murdered (1943) in the Sobibor concentration
camp. Mephisto was never published in Germany during Mann’s lifetime. Unlike his more
famous father, Mann returned to Germany briefly after the war, but confessed that he felt
himself ‘a stranger in my former fatherland’.47 At the age of forty-two, Mann took his own
life, overdosing on sleeping pills in Cannes in 1949.
The postwar career of Gustaf Gründgens was very different. Arrested by the Allies at
the end of the War, Gründgens was exonerated in a denazification proceeding after sev-
eral colleagues rose to his defence. These colleagues emphasized Gründgens’s anti-Fascist
outlook—he saw the theatre, they claimed, as a non-ideological oasis in the midst of the
Nazi wastelands—and his advocacy for victims of racial and political persecution. In his
turn, Gründgens contributed to the exoneration of other colleagues, including the actress,
Emmy Göring (Hermann’s widow), and the director, Veit Harlan.
His theatre licence restored, Gründgens enjoyed a distinguished postwar career on screen
and stage. In 1953, he became the first actor to receive the Starred Cross of Merit. Two years
later, Grüdgens became general intendant of the German Playhouse in Hamburg, a posi-
tion that brought him to the summit of his fame. Gründgens resigned the post in order to
undertake a world tour in 1963. In October 1963, in the Philippines, Gründgens died—like
Klaus Mann—from an overdose (perhaps intentional) of sleeping pills.
Shortly before Gründgens’ death, Berthold Spangenburg, a publisher in Munich,
announced the publication of the first edition of Mephisto in the Federal Republic.48
After Gründgens’ death, his adoptive son and sole heir, Peter Gorski, asked a Hamburg
court to enjoin the publication. The novel as a whole, Gorski argued, presented a falsified,
defamatory portrait of Gründgens. It was not a work of art but an act of private vengeance,
animated by Mann’s offended sense of family honour. The lower court rejected Gorski’s
petition but was overruled, in 1966, by the Hamburg superior court, whose ruling was sus-
tained in 1968 by the Federal Court of Justice. Spangenberg, appealed to the Constitutional
Court, contending that the injunction violated his right, under Article 5(3) GG, to artistic
freedom.
As a backdrop to all of these proceedings, the country was engaged in an unprecedented
public debate about Germany’s Nazi past. The Hamburg proceeding began shortly after the
close of the Frankfurt ‘Auschwitz trials’, which lasted from 1963 to 1965. What was quickly
dubbed a ‘dual of the dead’ pitted a ‘fellow traveller’ of the Nazi regime against an emigrant
who had served in the US Army. Whether emigration constituted an act of heroism or
betrayal was still hotly disputed. By the time the Mephisto case reached the Constitutional
Court, the Federal Republic was governed by an emigrant chancellor, Willy Brandt, who
had replaced a Nazi party member of the first hour, Kurt Georg Kiesinger. In the meantime,
Mephisto’s sojourn on the index of forbidden books generated unprecedented interest in
the hitherto forgotten novel. This was certainly not Peter Gorski’s intent, wrote Marcel

46  This account of Mephisto owes much to the work of Thomas Henne. See Thomas Henne, ‘Klaus Manns

Mephisto und die Publikationsverbote der deutschen Gerichte. Zur gerichtlichen Karriere des Romans und
seines Münchener Verlegers Berthold Spangenberg’ in Dirk Heißerer (ed), Thomas Mann in München (Peniope
2004) 27; Thomas Henne, ‘Die Mephisto-Entscheidungen der deutschen Gerichte. Eine exemplarische, justi-
tiell geführte Auseinandersetzung über den Umgang mit der deutschen NS-Vergangenheit in den späten
sechziger und frühen siebziger Jahren’ in Birgit Feldner and others (eds), Ad Fontes. Europäisches Forum Junger
Rechtshistoriker/innen (Lang 2002) 193.
47  Armin Strohmeyr, Klaus Mann (Deutsche Taschenbuch Verlag 2000) 140.
48  For an account of Spangenberg’s efforts to publish Mephisto, and of the long legal battle that followed, see

Thomas Henne, ‘Klaus Manns Mephisto’ (n 46).

120 Confrontation, 1971–1982

Reich-Ranicki, the supreme pontiff of West German literati, but it had nonetheless earned
Gorski the Republic’s gratitude.49
Spangenberg’s complaint failed narrowly. 50 It won the support of three of the First
Senate’s six voting justices (Justices Haager and Simon did not participate), but the tie
went against the complainant. In the Court’s judgment of 24 February 1971, the pre-
vailing justices articulated a robust scope for the right of artistic freedom but declined,
in the case at hand, robustly to apply it. Article 5(3) GG, they explained, reflected a
value decision determining the relationship of the state to the artistic realm. It also
conferred an individual freedom. 51 In an alliterative (and untranslatable) pairing, the
controlling triumvirate established that the guarantee of artistic freedom secured both
the Werkbereich and the Wirkbereich of a work of art—both the artist’s freedom to cre-
ate works of art and her freedom publicly to disseminate them. Mediators between the
artist and public—in this case Spangenberg, the publisher—the publisher could invoke
the latter freedom too.52
Artistic freedom was limited neither by Article 2(1) GG, under which the right to the
free development of one’s personality was circumscribed by the rights of others, the con-
stitutional order, and the moral law; nor by Article 5(2) GG, under which the speech,
press, and broadcasting rights of Article 5(1) could be limited by general laws, statutory
measures for the protection of youth, and the right of personal honour. 53 The constitu-
tional guarantee of artistic freedom could be limited only when it collided with values
guaranteed elsewhere in the constitution. For purposes of the Mephisto appeal, this did
not include the personality rights guaranteed in Article 2(1). Those rights presupposed a
rights-bearer capable of potential or future action.54 The dead were incapable of personal
development.
But they were not deprived of dignity, the supreme constitutional value. Article 1(1) GG,
the prevailing justices held, protected even the posthumous dignity of all persons, includ-
ing Gustaf Gründgens.55 The conflict in the Mephisto case required, then, a sensitive bal-
ance between Spangenberg’s right to publish Mann’s novel and Gründgens’ right to the
posthumous protection of personal honour. The prevailing justices didn’t actually conduct
that balance. They only agreed that the lower courts had neither misunderstood the impact
of constitutional rights on civil law norms, nor erred fundamentally in balancing the con-
flicting rights.56 The lower courts had asked essentially the right questions; the answers they
had given were not obviously wrong. This was enough to satisfy three justices, and to keep
Mephisto on the index.
Three justices disagreed with this analysis; two recorded their disagreement in separate
dissents. For Erwin Stein, it was the first and last dissent of a twenty-year tenure on the
Court. For Wiltraut Rupp-von Brünneck, it was a harbinger of things to come.
Stein, who served as rapporteur in the case, objected that the lower courts had misunder-
stood the nature of art. Stein bolstered his own understanding with a flash of erudition, citing
critics as disparate as Theodor Adorno and Stefan George.57 The lower courts’ fixation on
the similarities between Höfgen and Gründgens was beside the point.58 A work of art pos-
sessed an internal coherence and enjoyed an artistic reality independent of the ‘real’ world.

49  Marcel Reich-Ranicki, ‘Noch ein Triumph des Gustaf Gründgens’ Die Zeit (18 February 1966). Incidentally,

Reich-Ranicki would later record in his popular memoir, Mein Leben, the extraordinary influence on him as
a Berlin teenager of Gründgens’s acting. ‘Gustaf Gründgens well-nigh hypnotized me’, Reich-Ranicki wrote.
Marcel Reich-Ranicki, Mein Leben (KG Saur, 2002) 146.
50  30 BVerfGE 173 (1971). 51 ibid 188. 52 ibid 189. 53  ibid 191–92. 54 ibid 194.
55 ibid 195. 56  ibid 195–200. 57 ibid 205. 58 ibid 206.
 Fundamental Rights 121

The masters of modern fiction—Goethe and Tolstoy, Fontane and Flaubert, Hermann Hesse
and Thomas Mann—had all written romans à clef without in the least diminishing their
novels’ stature as self-sufficient works of art.59 Just how little the lower courts understood
about the artistic process—or cared about artistic freedom—was betrayed by their sugges-
tion that Klaus Mann ought to have revised the novel after the War or, after facts favourable
to Gründgens came to his attention, supplied an extensive prefatory disclaimer.60 In Stein’s
view, the lower courts had underestimated the constitutional significance of art as art; they
had overemphasized the social, and ignored the aesthetic, component of Mann’s novel.
Justice Rupp-von Brünneck’s dissent struck a very different note. Justice Stein high-
lighted the novel’s aesthetic independence; Justice Rupp-von Brünneck stressed its politi-
cal embeddedness. Justice Rupp-von Brünneck chided the lower courts for ignoring the
novel’s political context—Mann’s position within, and Mephisto’s status as a statement of,
the anti-Nazi resistance.61 Using Gründgens as a vehicle to attack the regime may have
been questionable as a matter of taste. But as a matter of political morality it was, under
the circumstances, more than justified. Mephisito was a commentary on contemporary
events, and should enjoy constitutional protection similar to that granted by ‘the extraor-
dinarily generous jurisprudence of the U.S. Supreme Court’.62 Rupp-von Brünneck was
appalled, moreover, by her colleagues’ refusal to balance the values in question. The con-
trolling judgment rested on a ‘restrictive construction of the reviewing competence of the
Constitutional Court’—a break with precedent, she thought, and an ominous portent.63
If so, the omen pointed in the wrong direction. In coming years, a dissenting Justice
Rupp-von Brünneck would occasionally say sharp things—sometimes very sharp
things—about her colleagues. But never again would she complain that they construed
their mandate too meekly.
Ironically, neither dissenter thought much of Mephisto itself. Justice Stein considered the
novel an artifact of cultural history—destined, if published at all, for only a limited reader-
ship. Justice Rupp-von Brünneck deemed it a bad novel—at least by the standard of Mann’s
other works.64 But both thought it deserved the right to life, and the prevailing judgment
had denied it even that. The Court’s judgment relegated Mephisto to the same position in
the 1970s that it occupied in the 1930s—freely circulated around the globe, but banned in
Germany.
Banned, that is, in West Germany. Soon after the Court’s judgment a GDR publisher,
eager to thumb its nose at the liberal pretensions of the Federal Republic, published a new
edition of the novel. At the turn of the next decade, a pair of pirated editions appeared
in the West—one of which reproduced the Court’s decision in an appendix. In 1980, the
French director Ariane Mnouchkine staged a theatrical production of Mephisto, the script
for which circulated without opposition in the Federal Republic. Finally, in 1981, the West
German publisher rororo issued the Federal Republic’s first legal edition of the full novel.
Contrary to Justice Stein’s predictions of a limited readership of cultural antiquarians,
it soared almost immediately to the top of the Spiegel bestseller list, where it remained
for several months.65 The novel surely benefited from the aura of clandestinity conferred
by a long interdiction. Mephisto is now Mann’s best-known novel. The muses work in
mysterious ways.

59 ibid 208.   60 ibid 209–10.   61  ibid 224–25.

62  ibid 225 (citing New York Times v Sullivan, 376 US 254 (1964)). 63 ibid 219. 64 ibid 223.
65  Henne, ‘Klaus Manns Mephisto’ (n 46) 48–49.
122 Confrontation, 1971–1982

B.╇The ‘Lebach murders’: prisoner privacy and prime time television

Two years after the Mephisto judgment the Court returned to the theme of conflict between
personality rights and expressive freedoms—this time press and broadcasting freedoms.
In the background was a dramatic crime committed in the small Saarland city of Lebach
in 1969. Hans Jürgen Fuchs and Wolfgang Ditz, both professionals in their mid-twenties,
assaulted a munitions depot at the Lebach army barracks, killing four sleeping soldiers,
gravely injuring a fifth, and stealing a stockpile of weapons and ammunition. A third young
man, Gernot Wenzel, helped plan the crime and taught Fuchs and Ditz how to fire pistols.
The three friends planned to sell what they stole, buy a yacht, and set sail on the South
Sea. Fuchs, Ditz, and Wenzel were not, as contemporaries initially suspected, Mafiosi
or Left-wing terrorists.66 Their friendship, as the Constitutional Court later noted, had
‘a homosexual component’.67 They hoped to escape a country where homosexuality was
criminalized by the state and demonized by society, and to form a separate, idyllic commu-
nity of their own. In a bitter irony, the crime coincided almost exactly with the Bundestag’s
repeal of criminal sanctions for male sodomy—a penal code provision sustained by the
Constitutional Court in 1957.68 After a months-long manhunt that generated enormous
popular attention, the trio were apprehended, arraigned, and convicted. Fuchs and Ditz
were sentenced to life imprisonment for holdup murder (Raubmord); Wenzel (‘Gernot W’.
in the court reports) to six years for complicity.
Wenzel had served two-thirds of his sentence when the ZDF69 television network pro-
duced a documentary drama—‘The Lebach Soldiers Murder’—depicting the crime that
Wenzel helped plan. The show would air at prime time on a Friday evening. Nearly three
hours long, the film chronicled the crime’s planning, execution, and aftermath. It began
by displaying the names and photographs of the three participants, thereafter portrayed
by actors but repeatedly called by name. Wenzel had been a model prisoner, and his term
was to end early—indeed, was almost over. Not wanting his crime dramatized on national
television on the eve of his release, he asked the district court in Mainz to enjoin the film’s
broadcast, arguing that airing the show would violate his general personality right, as well
as his rights of name and reputation. The district court rejected the petition, as did the
appeals court in Koblenz. Both courts relied on a 1907 law, still in force, that governed
artistic production. The law banned injuries to name and reputation but made an excep-
tion for figures of contemporary history (Zeitgeschichte). As a figure of contemporary his-
tory, Wenzel’s personality interests must yield to the public’s interest in information about
a crime he helped commit. Wenzel then challenged these judgments in a constitutional
complaint.
On 13 March 1973, the Constitutional Court issued a preliminary injunction against the
broadcast.70 On 5 June, the First Senate made the injunction permanent.71 The Senate’s anal-
ysis centred, naturally, on the conflict between ZDF’s broadcasting freedom and the com-
plainant’s personality right. Both rights exerted a radiating effect (Ausstrahlungswirkung)
on the 1907 law applied by the courts below. Neither right, in the abstract, took precedence
over the other. Both stood near the centre of the Basic Law’s value system; both were rooted
in human dignity.72 As always, resolution required balancing. Specifically, the Senate

66╇ See ‘Nicht Apo und nicht Mafia’ Die Zeit (3 July 1970). 67╇ 35 BVerfGE 202, 204 (1973).
68╇ See 6 BVerfGE 389 (1957).
69╇ Zweites Deutsches Fernsehen, or Second German Television—the network now under the control of states

and societal groups, thanks to the Constitutional Court’s 1961 Television judgment.
70╇ 34 BVerfGE 341 (1973). 71╇ 35 BVerfGE 202 (n 67). 72╇ ibid 220–26.
 Fundamental Rights 123

weighed ‘the intensity of the intrusion into [Wenzel’s] personality sphere’ against the public’s
concrete interest in information about the crime.73
As a general matter, the Senate conceded, the public’s interest in information about seri-
ous crimes outweighs the personality interests of those who commit them. But there were
other considerations. One was the principle of proportionality: an intrusion into a criminal’s
personal sphere must be no more invasive than required to satisfy a reasonable public inter-
est in information.74 Another was chronology. As time passed, a convicted criminal’s inter-
est in being left alone increased, while the public’s interest in further details about his crime
subsided—especially when the new information did little more than reveal the criminal’s
identity.75 The final consideration, and in the First Senate’s analysis the decisive consideration,
was Wenzel’s interest in resocialization.
Reforms in recent decades, the Senate noted, had enthroned resocialization as the central
goal of criminal punishment.76 The question of resocialization was so pivotal that the Court
took the unusual step of conducting its own factual investigation into the likely effects of the
broadcast on Wenzel’s chances for successful social integration. This investigation involved
expert hearings partly closed to the public. The Court concluded that airing the film would
gravely endanger the complainant’s opportunity for successful reintegration, and that this fact
alone justified enjoining the film. Several features of the film made it particularly perilous for
Wenzel’s social future. One was its medium. According to expert testimony, filmic presenta-
tion of a crime left a more enduring impression on viewers than a print report on readers.77
The medium, moreover, was to be deployed in prime time before the largest possible audience.
Another endangering feature was the film’s emphasis on the perpetrators’ homosexual-
ity. The Senate almost suggested that Wenzel’s resocialization would be imperilled more
by the revelation of his sexual orientation than by the exposure of his criminal past. ‘In
the complainant’s situation’, the justices wrote, ‘the bond with a female life partner could
represent the decisive factor for the success of his reintegration’.78 Expert testimony indi-
cated that it was entirely possible that Wenzel would find such a partner, but being ‘branded
as a homosexual’ before millions of viewers might doom his odds forever.79 The Senate
conceded that the impact of the broadcast on the complainant’s resocialization could not
be assessed with precision. But the risks were intolerable—so much so that the Senate not
only quashed the lower court decisions but enjoined the broadcast on its own authority.
Remanding the case to the lower courts, as the normal procedure required, would generate
further publicity, undermining the very resocialization the judgment sought to further.80
The judgment distressed some members of the media. ZDF complained that the judg-
ment would limit its ability to dramatize current events.81 The Frankfurter Allgemeine
Zeitung noted impatiently that, ‘for a certain field of especially “near-to-life” depiction, the
hands of the media [are] more bound than before’. This was the ‘tribute the Court exacted
for resocialization’.82 Some legal scholars worried that the ‘personality right’ was running
amok.83 Others countered that the judgment set a useful precedent for the soon-to-be

73 ibid 226. 74 ibid 232.
75  ibid 234. This was a bit of a red herring: the names of the perpetrators had long since appeared in all major
newspapers. See, e.g., ‘Lebach: der dritte Mann’ Der Spiegel (12 May 1969); ‘Lebach: das Trio’ Der Spiegel (4 May
1970); Hans-Joachim Noack, ‘Nicht Apo und nicht Mafia’ Die Zeit (3 July 1970); ‘Gekicher im Saal’ Die Zeit (10
July 1970); ‘Das Unbegreifliche blieb ohne Erklärung’ Die Zeit (14 August 1970). Between 1970 and 1972, Gernot
Wenzel was personally named in connection with the crime twenty-seven times in the Frankfurter Allgemeine
Zeitung.
76 ibid 235. 77  ibid 227–29. 78 ibid 242. 79 ibid. 80  ibid 244–45.
81  In Bruno Waltert, ‘ZDF muβ Lebach-Fernsehspiel umarbeiten’ Die Welt (6 June 1973) 2.
82  ‘Verfassungsgericht verbietet Sendung des ‘Lebach’-Films’ FAZ (6 June 1973) 1, 10.
83  Heinrich Hubmann, ‘Persönlichkeitsschutz ohne Grenzen’? (1974) 70 Archiv für Urheber- Film—Funk—und

Theaterrecht 75.
124 Confrontation, 1971–1982

contentious question of personal data protection.84 Nearly everyone agreed that the judg-
ment was a remarkable exercise in judicial sociology—robust enforcement of individual
rights informed by apparently Deweyite sensibilities.85 In any case, it was a testament to the
First Senate’s confidence—its willingness to conduct wide-ranging independent inquiries,
to assess social realities on its own authority, and to give its conclusions the force of law,
existing statutes notwithstanding.

C.╇The rights of prisoners

The Lebach judgment was also notable, like the Mephisto judgment before it, because it
gave more than rhetorical weight to the constitutional guarantee of human dignity. In the
Lebach case, the First Senate enforced dignity—in conjunction with the general personal-
ity right—as a concrete norm protecting a social outsider. The weight the judgment gave to
dignity was unique, but it wasn’t the first time the Court had vindicated the rights of the
imprisoned. A year earlier, the Second Senate held that the fundamental rights of prisoners,
like those of other citizens, can be limited only by statute or on the basis of statute.86 This
holding bucked the reigning academic and judicial orthodoxy, which posited for prisoners a
‘special relationship’ with the authority of the state (besonderes Gewaltverhältnis). The spe-
cial relationship doctrine was generally held to justify encroachments on inmate rights that
prison administrators thought necessary to maintain safety and order. In its judgment of
14 March 1972, however, the Second Senate explicitly rejected the doctrine as an intolerable
relativization of prisoners’ basic rights. One commentator summarized the result by para-
phrasing Julius von Kirchmann’s famous barb about ‘The Worthlessness of Jurisprudence
as a Science’: ‘One judgment (of the Constitutional Court) and entire volumes of decisions
become waste-paper’.87
The case involved an inmate in Celle whose correspondence was confiscated by prison
authorities. In a 1967 letter to a prisoner assistance organization, the inmate inveighed
against the prison’s conditions and vituperated its warden. The prison’s administration,
which routinely screened inmate correspondence, blocked the letter. When the Celle supe-
rior court sustained the confiscation, the prisoner appealed to the Constitutional Court,
arguing that the censorship violated his right to free expression under Article 5(1) GG and
to postal secrecy under Article 10(1) GG.
The Second Senate held that restrictions of prisoner rights require statutory foundation.
In addition, the Senate stressed that even statutory restrictions must be necessary to accom-
plish a community goal, rooted in constitutional values, and pursued through constitu-
tionally appropriate channels.88 Moreover, restrictions must conform to the principle of
proportionality. Because the federal government had already proposed a comprehensive
law governing the execution of criminal sentences, the Senate allowed limitations on pris-
oner rights that lacked a statutory basis to remain in force for a transitional period.89 But

84╇ See Martin Löffler, ‘Licht- und Schattenseiten. Das Lebach-Urteil aus der Sicht des Art. 5 GG’ (1973) 36

Funk-Korrespondenz 3.
85╇ On the judgment’s sociological aspects, see Friedrich Kübler, ‘Sozialisationsschutz durch
Medienverantwortung als Problem richterlichen Normierens’ in Friedrich Kübler (ed), Medienwirkung und
Medienverantwortung. Überlegungen und Dokumente zum Lebach-Urteil des Bundesverfassungsgerichts (Nomos
1975) 7; Kurt Lüscher, ‘Jurisprudenz und Soziologie. Die Zusammenarbeit in einem konkreten Rechtsfall’ in ibid
81–114. See also Kurt Lüscher, ‘Medienforschung und Rechtsprechung. Soziologische Bemerkungen zum Fall
Lebach’ (1974) 22 Archiv für Presserecht 643.
86╇ 33 BVerfGE 1 (1972).
87╇ Heinz Müller-Dietz, ‘Verfassung und Strafvollzugsgesetz’ (1972) 26 NJW 1162.
88╇ 33 BVerfGE 1 (n 86) 11. 89╇ibid 13.
 Fundamental Rights 125

that period must be brief. After the close of the current legislative period in autumn 1973,
restrictions on prisoner rights with no foundation in statutory law would become uncon-
stitutional.90 Parliament, in other words, could either act swiftly or surrender the field to
the courts.
It went without saying, the Senate added, that the concession of a transition period did
not authorize arbitrary infringements of inmate rights. During the transition, competent
courts and administrative bodies would review encroachments case by case, assessing in
each instance the necessity of the encroachment to an orderly and efficient prison regime.91
The Senate modelled such review in the case at hand. Supervising the prisoners’ corre-
spondence was justified, the Senate concluded, since uninhibited contact with the outside
world might endanger the prison’s successful operation. Prison administrators need not,
for instance, allow inmates to plot their own escape with enablers outside. But intercepting
the complainant’s letter because it criticized the prison and insulted its warden violated
the prisoner’s freedom of opinion.92 The letter contained subjective value judgements pro-
tected by Article 5 GG. Article 5, the justices explained, protected not only ‘valuable’ views
but all views—‘right’ views as well as ‘wrong’, ‘emotional’ views as well as ‘rational’.93 To
protect only views of ‘a certain ethical quality’ would relativize Article 5’s comprehen-
sive guarantees.94 In any case, it was nearly impossible, in a pluralistic society, to draw a
definitive line between valuable and worthless opinions. In a free democratic society all
views—even dissident and derogatory views; even the views of prisoners—enjoy constitu-
tional protection.
The only thing displeasing about the Court’s judgment, wrote Christian Starck, a law pro-
fessor in Göttingen, was that it hadn’t come fifteen years earlier.95 A host of prisoner com-
plaints had flooded the Court in previous decades, nearly all of which had been dismissed
out of hand by three-judge screening panels. Starck speculated that this case got to the full
Senate only through the efforts of the Senate’s newer members—Joachim Rottmann and
Martin Hirsch—who as members of Parliament had grappled with the problem of criminal
sentence enforcement.96 But better late than never, Starck concluded. The judgment spoke
to ‘the undoubted merit of a Constitutional Court not otherwise especially meritorious in
[the matter of] criminal enforcement’.97 The judgment also highlighted the Court’s willing-
ness to take fundamental rights seriously; to enforce them vigorously; and, more controver-
sially, to tell Parliament what to do.

D.╇Medical licensing and appealing to Parliament

This last willingness was on display again within weeks. The case involved occupational
freedom claims from two complainants, both of them medical specialists, who had been
censured by professional conduct courts in their respective state medical associations. The
first complainant, from North-Rhine-Westphalia, was punished for treating a patient out-
side his specialty field; the second, from Baden-Württemberg, for claiming more than one
specialty. The state medical associations were public institutions to which the state parlia-
ments had delegated authority to regulate the medical profession. The complainants con-
tended that their sanctions violated their right to occupational freedom under Article 12(1)
GG. The Constitutional Court agreed, quashing the judgments against the complainants
and remanding the cases to the courts below.98

90╇ibid. 91╇ibid. 92╇ibid 14. 93╇ibid 14–15. 94╇ibid 15.

95╇Christian Starck, ‘Anmerkung’ (1972) 27 JuristenZeitung 357, 360. 96╇ibid 361.
97╇ibid 362. 98╇ 33 BVerfGE 125 (1972).
126 Confrontation, 1971–1982

In its written judgment of 9 May 1972, the First Senate acknowledged that Article 12 did
not decree that only legislatures or executive bodies empowered by legislatures could limit
occupational freedom.99 Within certain limits, legislatures could empower autonomous
bodies to issue and enforce regulatory ordinances. But the Basic Law limited such delega-
tions.100 The legislature could not quit the field entirely—could not completely surrender its
lawmaking authority or influence over its delegatee. Special limits on delegation must be
observed, particularly when the delegation included power to limit fundamental rights. In
such cases the legislature had a heightened responsibility.101
On the other side, occupational freedom was intimately linked to the development of
the human personality. An individual’s right to self-determination could be limited only
to further general interests. And such interests must be identified by the legislature. This
didn’t mean that legislatures could never delegate authority to occupational associations.
But it did mean that the legislature must actively protect the freedom of individuals and the
interests of minorities against encroachment by such associations.102 The legislature must
identify regulatory aims and provide guidance for their fulfilment. In the current case, the
delegations were too general. State parliaments had given state associations a regulatory
carte blanche.103
Restrictions on occupational freedom imposed by occupational associations would be
assessed, the Senate explained, on a case-by-case basis, consistent with the proportional-
ity principle and the three-tier schema outlined in the 1958 Pharmacy judgment.104 But, as
a precondition to such case-by-case adjudication, basic guidelines for assessing an indi-
vidual’s status as a specialist must be stipulated by statute. Associations could then add
implementing regulations to standards established by the legislature. But state legislatures
must establish such standards.
Traditionally, the power of judicial review had been understood as a negative and defen-
sive power—the power of courts to tell legislative and executive actors what they must not
do. But just as the Court in its Lüth judgment had defined fundamental rights as affirma-
tive values radiating into all areas of law, so the Court in its Medical Licensing judgment
had—for the second time in as many months—moved beyond defensive prevention of
­political overstepping to affirmative prescription of political action. To be sure, the expan-
sions were cautious, almost reluctant, and limited to the facts of the two cases. Most schol-
ars assumed the two cases were exceptional, and would have few, if any, successors.105 That
assumption was contradicted by events.

III.  Political Justice

In December 1971, just days after becoming chief justice, Ernst Benda gave an inter-
view with Der Spiegel. In response to the interviewer’s most pointed questions about
the Court’s political role, Benda declared flatly that ‘[t]‌he Federal Constitutional Court
does not make policy’—or, differently translated, the Court ‘does not do politics’ (Das
Bundesverfassungs gericht macht keine Politik).106 Asked whether, having exercised power
in Bonn, he wished now to do so in Karlsruhe, Benda downplayed the Court’s political
significance. The new chief justice stressed that the Court’s role was not to wield power but
to restrain it, not to form policy but to enforce constitutional limits on those who did. But

99 ibid 155. 100 ibid 157. 101 ibid 158. 102 ibid 160. 103  ibid 160–65.

104 ibid 160.
105  See the recollection in Martin Kriele, ‘Anmerkung’ (1975) 30 JuristenZeitung 205, 223.
106  ‘Ortwechsel ist kein Gesinnungswechsel’ Der Spiegel (13 December 1971).
 Political Justice 127

though Benda refused to opine on questions that might come before the Court, and though
he expected his new post and perspective to change his mind on some constitutional ques-
tions, Benda conceded that a mere ‘change of place does not necessarily bring with it a
change of viewpoint’. He admitted frankly that he remained a political animal: ‘I am still
a member of the CDU and intend so to remain. Anything else’, he concluded, ‘would be
hypocrisy’.107
To many observers, the 1970s would make nonsense of Benda’s claim—really a hereditary
piety—that the Court didn’t make policy. The claim would have to be qualified into mean-
inglessness or abandoned altogether. Beginning early in Benda’s tenure and continuing
until the end of the decade, the justices confronted an astonishing sequence of high-profile
political disputes—cases whose frequency and explosiveness brought the Court unprec-
edented attention and unparalleled controversy. Never was the Court more aggressive in
correcting or quashing, delimiting or dictating government policy. Never had the general
public responded with such full-throated screeds against the Court’s overreaching.
The Court came to be seen in many quarters as the foremost institutional foe of
Social–Liberal reforms. Those reforms were the legislative fulfilment of Brandt’s campaign
promise to dare more democracy. In checking and in some cases nullifying them, the Court
was criticized for the first time as a threat to democracy itself. The public’s esteem for the
Court sank to unprecedented depths. The Court’s critics howled with unprecedented furor.
Many of the Court’s quondam champions became detractors. But the Court’s existence and
function were never seriously challenged, and when, at decade’s end, the season of confron-
tation came to an abrupt halt, the Court’s reputation recovered rapidly, soon surpassing its
previous zenith. The test, however, was very real. The confrontation was greater than the
sum of its parts. The crisis played out in crescendo.

A.╇University admissions
‘Ladies and gentlemen’, trumpeted Chancellor Willy Brandt in October 1969, ‘education
and vocational training, scholarship and research stand at the summit of the reforms that
must be carried out among us’.108 Education, Brandt continued, would form the heart of his
administration’s domestic policy. ‘The school of the nation’, he added, modifying a prov-
erb about the Prussian army, ‘is the school’.109 Among other things, the new government
planned to promulgate sweeping legislation providing universal guidelines for university
governance.
The theme was not a new one. Education reform was a pressing issue throughout the 1960s.
Georg Picht, a theologian and educator, fired the debate’s opening salvo with his 1964 jere-
miad, The German Education Catastrophe.110 Standing alone, Picht’s title was dire enough;
but it also echoed the title of Friedrich Meinecke’s The German Catastrophe, a meditation
on Nazism by the aging dean of German historians.111 Picht prophesied the ‘third great col-
lapse of German history in this century’ unless Parliament and people united in a concerted
effort to revitalize and reform the German education system, which, the economic miracle
notwithstanding, remained vastly underfunded and abominably run.112 Germans needed
to learn, Picht admonished, to see educational investment as economic investment. He

107╇ibid.
108╇ (1969/70) 71 Verhandlungen des Deutschen Bundestages, Stenographische Berichte 26.
109╇
ibid.â•…â•…â•…110╇Georg Picht, Die deutsche Bildungskatastrophe (Walter 1964).
111╇ Friedrich Meinecke, Die deutsche Katastrophe, 2nd edn (FA Brockhaus 1946).
112╇ Picht (n 110) 87.
128 Confrontation, 1971–1982

called for massive increases in educational funding. Other powerful voices soon followed.
Where Picht appealed to Germans’ interest, the sociologist Ralf Dahrendorf appealed to
their conscience. ‘Bildung ist Bürgerrecht’, was Dahrendorf’s mantra—‘Education is a civil
right’.113 In Dahrendorf’s view it was the duty of a modern democracy to secure equal edu-
cational opportunity for all its citizens. Education, Dahrendorf wrote, was ‘the foundation
of freedom for the individual and his society’.114 There must be more schools, better schools,
and schools for all.
The need was especially acute at the university level. By the mid-1960s, West German
universities were hopelessly overcrowded. Between 1952 and 1967 the number of univer-
sity students in West Germany roughly doubled to about 270,000. The number of first-year
students more than doubled, from 25,000 to 51,000. The construction of new universities
and the expansion of existing faculties, however, did not keep pace. They did not come close
to keeping pace. In some fields, such as medicine, the crisis was severe. At medical schools
across the country there were more applicants than places, more students than faculty or
facilities could possibly accommodate. This was not a case of student supply exceeding soci-
etal demand. The nation manifestly needed more doctors, and in practically every field
of medical expertise. But resources were slim. Obviously, the crisis called for structural
reform and lavish funding. These, however, were slow in coming.
In the meantime, state governments dealt directly with the immediate problem of
overcrowding. Some did so in draconian fashion, adopting a system known as numerus
clausus—admission ceilings, sometimes absolute, beyond which an entering class could
not expand regardless of the number of qualified applicants. Hamburg passed such a law for
its medical school in April 1969; Bavaria followed suit in July 1970. Applicants whose test
scores qualified them for admission, but who were repeatedly denied on numerus clausus
grounds, challenged both laws before the Constitutional Court.
Their appeals were only partly successful.115 Rhetorically, the First Senate’s judgment of
18 July 1972 granted the justice of the petitioners’ cause. ‘The more strongly the state applies
itself to the social security and cultural advancement of its citizens’, the justices wrote,
‘the more the relationship between citizen and state will be marked, alongside the original
fundamental-rights postulate of securing liberty against the state, by the complementary
demand that participation in state services be secured by fundamental right’.116
This was a striking innovation in the Court’s understanding of fundamental rights. In
this view, rights not only defended the individual against state aggression and radiated
against third-party abuse, they guaranteed participation in state benefits. The more central
a state service was to a citizen’s welfare, the more exactingly the equality clause governed
that service’s distribution. What the state provided for some, it must provide for all—and on
equal terms. In the case of education, the equality demands of Article 3 GG were comple-
mented by the occupational freedom guarantees of Article 12. In many modern professions,
an occupation’s educational prerequisites were part of the occupation itself. It followed that
the Court must treat a restriction on the choice of educational path as it would a restriction
on the choice of profession. This meant that, in accordance with the 1958 Pharmacy judg-
ment, the justices must subject such restrictions to their severest scrutiny.117
An absolute numerus clausus on medical admissions effectively banned many applicants
from their chosen occupation on the basis of circumstances over which the applicants them-
selves had no control. Under the Court’s prevailing doctrine, this was the very worst sort of

113  Ralf Dahrendorf, Bildung ist Bürgerrecht (Nannen 1965). 114 ibid 35.

115  33 BVerfGE 303 (1972). 116  ibid 330–31. 117 ibid 330.
 Political Justice 129

infringement on occupational freedom—an infringement that could be justified only by the

most pressing public need. What’s more, the infringement was arbitrary. Absolute numerus
clausus meant that one class of citizens received the full measure of state educational ser-
vices while another class, equally qualified, received nothing—or must in any case wait
until the service might do them no good. This, the justices wrote, was ‘blatant inequality’.118
Blatant, but not fatal. From the constitution’s equality, occupational freedom, and social
state clauses the Senate derived an individual ‘right of admission to university study’. But
the justices also held that this right could be limited by law or on the basis of law. If such
a law took the form of an absolute numerus clausus for first-year students in a given field,
it could survive constitutional scrutiny only when implemented on the basis of objective
criteria defined by law. The state must give every applicant a fair chance at admission, show
the utmost regard for each individual’s choice of study, and demonstrate that every post in
a given department was filled to capacity. The Hamburg law failed this standard because it
was too general.119 The Hamburg legislature had not fixed the criteria for admissions bars
itself but had delegated such decisions to the universities. This was impermissible, but the
Court granted a grace period in which the state could mend the flaw. The existing pro-
vision could remain in force, but only until the beginning of summer semester 1973.120
The Bavarian law largely survived, though the Court did strike a provision that priveleged
Bavaria’s native daughters and sons. The desire to enable students to study close to home was
understandable and praiseworthy. But the right of admission to university study was the
right ‘of all Germans’, among whom Article 3 forbade geographical distinctions.121
Although the judgment made clear that numerus clausus was constitutionally problem-
atic, for the time being it left the laws essentially intact. It also left open the million dollar
question whether the individual right to university study entailed an affirmative state duty
to provide adequate schools and sufficient places for all who wished to study. And it left the
individual petitioners empty handed.
The outcome was sufficiently murky that all sides could claim victory. The judgment
pleased no one; but everyone pretended to be pleased. ‘Seldom has a judgment of the
Constitutional Court found so much approval among politicians’, wrote Friedrich Karl
Fromme. ‘The federal government and the federal opposition are equally content’.122 All
parties construed the judgment to their own purpose. Klaus von Dohnanyi (SPD), the
federal minister for science and education, welcomed the judgment as an affirmation of
his ministry’s policy and a blessing on its ambitions for comprehensive higher education
reform.123 Berthold Martin, the CDU’s education spokesman, retorted that the judgment
gave no cause for ‘partisan-motivated Schadenfreude’. On the contrary, it made the state
more accountable for university administration and in this regard comported with Union
aims.124 Hildegaard Haam-Brücher, an FDP education expert, saw in the judgment a trans-
fer of competence in education policy from the state to the federal level—a transfer that
fulfilled her party’s hopes.125
Such outward approval veiled private discontent. Robert Leicht, writing for the
Süddeutsche Zeitung, warned that the Court had relativized the very rights it proclaimed;
it had held that rights could be rationed when resources ran thin, and implied that positive
rights were never absolute.126 This was inevitable, Leicht acknowledged, but it was best to

118 ibid 333. 119 ibid 345. 120 ibid 305. 121 ibid 353.

122  Friedrich Karl Fromme, ‘Verfassungsgericht mit Augenmaß’ FAZ (21 July 1972) 2.
123  ‘Urteil über Numerus Clausus findet einhellige Zustimmung’ Die Welt (20 July 1972) 1.
124 ibid 2.
125  ibid. See also ‘Bayerische ‘Landeskinder-Vergünstigung’ nichtig’ Süddeutsche Zeitung (19 July 1972) 1, 2.
126  Robert Leicht, ‘Salomonisches zum Numerus Clausus’ Süddeutsche Zeitung (19 July 1972) 4.
130 Confrontation, 1971–1982

make it explicit. It was time for the Federal Republic to rid itself of the illusion that it could
simply articulate socio-political goals in the constitution and then take the matter to the
judges when those goals went unfulfilled. The Court itself, Leicht argued, had made the best
of a bad situation and scored a tactical triumph as well. By admitting that strict enforcement
was not possible, the Court could issue clear guidelines regarding what was possible.127 But
this, argued Bernd Nellessen in Die Welt, was precisely what made the judgment appall-
ing.128 It was not the business of a court of law to issue general legislative guidelines. In any
case, the guidelines the Court gave would prove bewilderingly difficult to apply.129
Events proved both commentators right. The political application of the judgment
was contentious and confused and required ongoing guidance from Karlsruhe. Donald
Kommers later termed the Numerus Clausus judgment ‘the beginning of a major judicial
intervention in university governance’, a process by which ‘the Constitutional Court …
transformed itself into a veritable ministry of education’, issuing a series of judgments that
‘accelerated the movement toward central control of higher education’. 130 The Numerus
Clausus judgment also marked the beginning of ‘a major judicial intervention’ in the politi-
cal process more broadly.

B.╇University governance
All education reformers agreed that West German universities were overcrowded. Others
argued, more controversially, that they were undemocratic. ‘Under the academic robes’,
student protestors chanted, ‘a thousand years’ of mold’. Rebels proposed to democratize
university governance by revolutionary means. Jürgen Habermas famously skewered this
proposal as a juvenile exercise in ‘left fascism’.131 At the same time, Habermas was a pas-
sionate proponent of democratic university reform,132 as was the political scientist Kurt
Sontheimer,133 with whom Habermas later exchanged fire on the subject of domestic terror-
ism.134 Reformers’ core demand was increased participation. Henceforth, the university’s
governing bodies must not consist only of professors, and the rector must not be elected by
the professors alone. Instead, all who were affected by these bodies’ decisions should have
a part in shaping them. These general demands were radical enough. A smaller minority of
reformers called for democratic constitutions that would grant all members of the univer-
sity community—janitors and students, as well as researchers and professors—a voice in
university governance.
Reformers rallied around a pair of watchwords. The first was Gruppenuniversität,
or ‘groups university’, which meant that representatives from the campus’s various
groups would comprise its governing councils. The second watchword, Drittelparität, or
‘one-third parity’, was more specific. It called for equal representation among three gov-
erning groups—students, scholarly assistants or researchers, and professors. Non-tenured

127╇ibid. 128╇ Bernd Nellessen, ‘Schlechte Noten per Gerichtsbeschluβ’ Die Welt (20 July 1972) 4.
129╇ibid.
130╇ Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 1st edn (Duke

University Press 1989) 302, 303.

131╇ Jürgen Habermas, Protestbewegung und Hochschulreform, 1st edn (Suhrkamp 1969) 10. Habermas was

hotly rejoined by his mentor, Wolfgang Abendroth. See Wolfgang Abendroth, Jürgen Habermas, and Peter
Brükner, Die Linke antwortet Jürgen Habermas (European Verl-Anst 1969).
132╇ Habermas (n 131) 202–43.
133╇ See Kurt Sontheimer, ‘Die Demokratisierung der Universität’ in Alexander Schwan and Kurt Sontheimer

(eds), Reform als Alternative. Hochschullehrer antworten auf die Herausforderung der Studenten (Westdeutscher
Verlag 1969) 63.
134╇ See the exchange in Jurgen Habermas, Kleine politische Schriften I-IV (Suhrkamp 1981) 367–406.
 Political Justice 131

professors, ignored by the existing constitutions, applauded the parity proposals eagerly.
Non-scholarly employees soon called for greater representation as well.135 Only later
did the idea gain currency that other employees—maintenance and technical crews, for
instance—should have a voice as well. Some then spoke of a Viertelparität, or ‘one-fourth
parity’.
Naturally, calls for reform encountered resistance, and the more radical the proposals,
the more intense the opposition. Conservatives depicted a parade of horribles in which
cleaning ladies would pass judgment on professorial appointments or promotions. The
conservative catchphrase was Fremdbestimmung, or foreign determination—the specter of
amateurs telling experts how to do their jobs, of outsiders deciding matters about which they
knew nothing. Wilhelm Hennis deplored knee-jerk applications of democratic models to
contexts, such as higher education, in which they had no relevance. The university, Hennis
wrote, was like a family. Making students equal to professors in university governance was
like making children equal to parents. For all the heady enthusiasm about ‘democratiza-
tion’, there were places where democracy did not belong. Those who thought differently
suffered from what Hennis called Adamsneid; they envied Father Adam’s appearance in
Eden in a state of full maturity. Proponents of radical university democratization, Hennis
implied, were revolting against nature.136
Most professors of public law agreed. Some argued that to include even one student on
an academic board would violate professors’ academic freedom. A Lower-Saxon law imple-
menting the parity model in that state’s universities allowed these lawyers to test their argu-
ments before the Constitutional Court.
The law in question—‘the leftest of all leftist laws’, groused Wilfried Hasselmann, boss of
the Lower Saxon CDU137—was passed on 26 October 1971. It placed university administra-
tion in the hands of a series of councils, with professors holding half or fewer than half of the
seats on each university’s central councils. The academic council, for instance, would con-
sist of twenty-four professors, twenty-four non-tenured researchers, twenty-four students,
and sixteen non-academic employees, a ratio of 3:3:3:2. On the appointments committee,
the professor–researcher–student ratio would be 4:2:2; on the curriculum commission,
2:4:4. Unsurprisingly, the Lower-Saxon professoriate was not pleased. No fewer than 398
professors challenged the law in a constitutional complaint. In response to the professors’
petition, federal and state education officials filed briefs defending the statute; the national
Rectors’ Conference and other faculty organizations filed further briefs opposing it. In the
meantime, every other state in the Federal Republic passed legislation enacting some vari-
ation on the parity model. Similar proposals surfaced at the federal level. All parties awaited
the Court’s judgment with interest and impatience. Anticipating student protestors, Chief
Justice Benda asked police to cordon off the Court building during oral arguments in
December 1972.138 The justices were justifiably nervous; their building had been bombed
earlier in the year.139 In the event, the cordon proved unnecessary. The students, menacing
or otherwise, never showed up.

135  See Hartmut Boockmann, Wissen und Widerstand. Geschichte der deutschen Universität, 1st edn (Siedler

1999) 258–62.
136 Hennis, Demokratisierung. Zur Problematik eines Begriffs (Westdeutscher Verlag 1972) 35–39.
137  In ‘Eine glänzende Bestätigung’ Der Spiegel (4 June 1973).
138  See Axel Azzola, ‘Verfassungsbeschwerden gegen Hochschulgesetze kommen zur Entscheidung’ (1973) 6

Zeitschrift für Rechtspolitik 44.

139  Hellmuth Rieber, ‘Ungenügende Sicherheit. Nach dem Attentat in Karlsruhe’ Badischer Zeitung (Freiburg

im Breisgau, 17 May 1972).
132 Confrontation, 1971–1982

The First Senate’s judgment of 29 May 1973 upheld the Groups University model in prin-
ciple but condemned its application in Lower Saxony.140 The Senate began by defining the
academic freedom guarantees of Article 5(3) GG more fully than it had ever done before.
Those guarantees, the Senate held, were both defensive and affirmative. On the one hand,
the state must not impede scholarly inquiry. On the other hand, it must foster an institu-
tional framework in which such inquiry can be carried out. The state must sponsor a system
of higher education, and it must organize that system in a manner that honours the right to
free scholarly activity.
That right neither endorsed the traditional German university nor demanded its
reform.141 The legislature enjoyed considerable discretion in organizing the university sys-
tem and adapting it to contemporary needs. Nothing in the constitution forbade including
students and non-academic staff in university decision-making; nor, a fortiori, did the con-
stitution preclude involving non-tenured researchers and lecturers, whose scholarly activi-
ties also enjoyed Article 5 protection.142 Indeed, the judgment went so far as to hold that
non-tenured scholars must participate in decisions that affect them.
But the position of professors, particularly in research and teaching, was special. However
a state organized its universities it must honour professors’ unique scholarly role. Professors
had higher scholarly qualifications, greater responsibility for the school’s functionality and
reputation, and a greater concern for the long-term impact of administrative decisions.
Professors’ role in teaching and research was paramount, and their influence within rel-
evant councils must reflect that preeminence.
There was a flip side, then, to the muscular equality rhetoric of the Numerus Clausus
judgment. Yes, Article 3 GG forbade the unequal treatment of equal groups; but it also for-
bade the equal treatment of unequal groups.143 In matters of research and pedagogy, all uni-
versity groups were not equal. In some administrative matters, professors might be primus
inter pares. But in matters of research, teaching, and appointment, they were simply primus.
More concretely: In matters related to teaching, the influence of professors must be control-
ling (maβgebend); in matters related to research and appointment, it must be decisive (auss-
chlaggebend). Lest legislatures miss the point, the justices gave these adjectives arithmetical
substance. On councils concerned with teaching, professorial representatives must hold at
least half the votes; on councils concerned with research or hiring, more than half. Insofar
as the Lower Saxon law failed to grant professors a veto on teaching councils and an absolute
majority on research and hiring councils, the Senate declared it unconstitutional—though
strangely (some scholars thought incoherently),144 not yet null and void.145

140  35 BVerfGE 79 (1973). 141 ibid 116. 142 ibid 125.

143  ibid 127 (citing 17 BVerfGE 337, 354 (1964); and 30 BVerfGE 292, 333 (1971)).
144  See Dian Schefold and Klaus-Rüdiger Leske, ‘Hochschulvorschaltgesetz: verfassungswidrig—aber nicht

nichtig’ (1973) 27 NJW 1297.

145  This was an early instance of a practice, which the Court ‘literally invented’, by which a norm is pro-

nounced ‘incompatible’ (unvereinbar) with the constitution but left on the books (though not always in force)
until a required legislative revision. For a few samples of a massive literature, see Otto Bachof, ‘Der Richter
als Gesetzgeber?’ in Otto Bachof et  al (eds), Wege zum Rechtsstaat. Ausgewӓhlte Studien zum ӧffentlichen
Recht (Atheneum 1979) 344–358; Jens Blüggel, Unvereinbarkeitserklӓrung statt Normkassation durch das
Bundesverfassungsgericht (Duncker and Humblot 1998); Peter E.  Hein, Die Unvereinbarerklӓrung ver-
fassungswidriger Gesetze durch das Bundesverfassungsgericht (Nomos 1988); Apostolos Gerontas, ‘Die
Appellentscheidungen, Sondervotumsappelle und die bloβe Unvereinbarkeitsfeststellung als Ausdruck der
funktionellen Grenzen der Verfassungsgerichtsbarkeit’ (1982) 97 Deutsches Verwaltungsblatt 486; Hermann
Heuβner, ‘Folgen der Verfassungswidrigkeit eines Gesetzes ohne Nichtigerklӓrung’ (1982) 36 NJW 257; Jӧrg
Ipsen, ‘Nichtigerklӓrung oder ‘Verfassungswidrigerklӓrung’—zum Dilemma der verfassungsgerichtlichen
Normenkontrollpraxis’ (1983) 38 JuristenZeitung 41; Hartmut Maurer, ‘Zur Verfassungswidrigerklӓrung von
Gesetzen’ in Hans Schneider and Volkmar Gӧtz (eds), Im Dienst an Recht und Staat: Festschrift für Werner Weber
zum 70. Geburtstag dargebracht von Freunden, Schülern und Kollegen (Duncker and Humblot 1974) 345; Albrecht
Peter Pohle, Die Verfassungswidrigerklӓrung von Gesetzen (Cirencester 1979); Michael Sachs, ‘Tenorierung
 Political Justice 133

The judgment was not unanimous. Justices Helmut Simon and Wiltraut Rupp-
von-Brünneck dissented, not so much from the majority’s basic interpretive framework as
from the specificity of its conclusions. The two dissenters recoiled from the Court’s deri-
vation of detailed demands for university organization from a sparse constitutional text.
In its entirety, the relevant clause of Article 5(3) read: ‘Art and scholarship, research and
teaching are free’. By deriving minute prescriptions from an eight-word general clause,
the majority had exceeded its mandate. The Court, the dissenters complained, was sup-
planting the legislature.146 It was neither the last nor the loudest dissent in which these two
justices joined.
This dissent provided the starting point for academic and journalistic criticism. Bernhard
Schlink dismissed some of this criticism as misguided, but not in terms unambiguously
flattering to the Court. ‘The objection that this catalogue [of required voting proportions]
could not possibly be the result of an interpretation of Article 5(3)’, Schlinck wrote, ‘misses
the mark with the Constitutional Court, which in its implementation of value decisions has
long since abandoned the boundaries of juristic hermeneutics’.147 But for many critics the
problem was not that the Court had offended canons of construction but that it had flouted
the separation of powers. ‘Last week’, Der Spiegel reported, ‘six judges in Karlsruhe did what
should have been done by federal and state politicians: they made university policy, binding
on universities throughout the Republic’.148 In one way or another, the article predicted, ‘this
judgment and the [future] jurisprudence of Karlsruhe … will define the university policy
of the entire Federal Republic. For good or ill, all state university laws and even the planned
federal University Law … will have to orient themselves toward the vote in Karlsruhe’.149
This prediction proved prophetic. All state university laws, as well as the federal uni-
versity legislation finally passed in 1976, took their cues from the Court’s University
Governance judgment. But while some observers bemoaned the Court’s activism, others
applauded its pragmatism: the Court had charted a middle way that gave legislators discre-
tion but kept reforms in check. Die Zeit published a handful of responses to the judgment,
nearly all of them positive, from state ministers affected by it.150 Student protestors huffed
about an ‘endorsement of the ruling class’, but even SPD state ministers saw a silver lining in
the Court’s approval, in principle, of the Group Model.151 Many commentators were grate-
ful that the Court had given constitutional clarity to a contested question. Bavarian cul-
ture minister Hans Maier—who in subsequent decades would take criticism of the Court
to unprecedented levels—was effusive. Maier extolled the Court’s ‘historic achievement’
in ending ‘the unsavory parity dispute … and with it a years-long barrier to university
reform’.152 Activist the Court may have been. But at least, some contemporaries thought, it
had made a good job of it. Professorial response to the judgment, mirabile dictu, was tem-
pestuously approving.153

bei Normenkontrollentscheidungen des Bundesverfassungsgerichts’ (1982) 36 Die ӧffentliche Verwaltung 23;

Hans-Jochen Vogel, Nachsichten. Meine Bonner und Berliner Jahre (Piper 1997) 222 ff; S Kreutzberger, Die geset-
zlich nicht geregelten Entscheidungsvarianten des Bundesverfassungsgerichts (Lang 2007) 103; Paul E Rueda
Leal, Die verfassungsgerichtliche Unvereinbarerklӓrung—Untersuchungen zur Entwicklung und Funktion dieser
Rechtsfigur im deutschen Recht und zu ihrer Übertragbarkeit ins costaricanische Recht (1999) 24.
146  35 BVerfGE 79 (n 140) 148–70.
147  Bernhard Schlink, ‘Die Wissenschaftsfreiheit des Bundesverfassungsgerichts’ (1973) 25 Die Öffentliche

Verwaltung 543.
148  ‘Eine glänzende Bestätigung’ Der Spiegel (4 June 1973). 149 ibid.
150  ‘Stellungnahmen von Betroffenen zur Entscheidung des Bundesverfassungsgerichts’ Die Zeit (8 June

1973). See also ‘Länder reagieren unterschiedlich auf das Urteil zum Vorschaltgesetz’ Die Welt (31 May 1973) 2.
151  ‘Länder reagieren unterschiedlich auf das Urteil zum Vorschaltgesetz’ Die Welt (31 May 1973) 2.
152 ibid 2.
153  Ralph Müller-Terpitz, ‘BVerfGE 35, 79—Hochschulurteil’ in Jӧrg Menzel (ed), Verfassungsrechtsprechung.

Hundert Entscheidungen des Bundesverfassungsgerichts in Retrospektive (Mohr Siebeck 2000) 217–18.

134 Confrontation, 1971–1982

Taken together, the Numerus Clausus and the University Administration judgments pro-
foundly shaped higher education policy in the Federal Republic. The two decisions defined
the framework for reform in a field that the governing coalition placed at the summit of
its domestic agenda. But the two judgments had a deeper and more durable impact on the
Court itself. They marked the emergence of a new conception of fundamental rights. As
Bernhard Schlink summarized:
In the Numerus Clausus decision, the Federal Constitutional Court for the first time developed
in a fundamental way its new conception of basic rights in the Benefits State [Leistungsstaat].
[In that judgment], the Court posited, alongside the classical fundamental rights function of
securing freedom vis-à-vis the state, the complementary function of securing participation in
state benefits. The Court conceives the Benefits State as a state of public provisions, through
whose distribution fundamental rights are realized, and whose organization and procedures
are therefore fundamental rights problems. In the [University Administration] decision, the
Court concretized this conception and made clear how seriously it takes it: fundamental rights
are also actionable as participatory rights.154

Among other things, this new conception entailed a departure from the classical dichot-
omy of state and society. It would require the Court to intervene in societal and political
realities, and it would embroil the Court, inevitably, in political controversy.155
Such ensnarement came with a rapidity and intensity that neither Schlink, nor the
justices, nor anyone else foresaw. Indeed, it began even before the Court announced its
University Administration judgment. This controversy swirled, not around the centrepiece
of the government’s domestic policy, but around the crown jewel of its foreign policy. It was
the most politically charged matter to come before the Court since the European Defence
controversy two decades earlier. At issue were the constitutionality of the Brandt govern-
ment’s proudest diplomatic achievements and the legitimacy of its new Eastern policy, or
Ostpolitik. The stakes were staggering, and the world was watching.

C.╇Judicial politics and foreign policy

Ostpolitik was as crucial to the geopolitical aspirations and historical legacy of West
Germany’s fourth chancellor as Westbindung was to its first. Egon Bahr, Brandt’s bril-
liant foreign policy advisor, gave the new policy its Sybilline mantra in 1963. Bahr called
for Wandel durch Annäherung—‘change through rapprochement’. The phrase implicitly
recognized that there was no direct route to reunification—that confrontation with the
East in an Adenauerian Politik der Stärke (policy of strength) had failed and should be
replaced by a gradualist, pragmatic approach based on de facto acceptance of the sta-
tus quo and efforts to improve human conditions in East Germany. It was a ‘politics of
small steps’ designed to soften the chill of Cold War confrontation, to ‘normalize’ rela-
tions between the two Germanys, and to stabilize the security of Europe. The concept
guided Brandt’s tactical and strategic thinking as foreign minister in the grand coali-
tion. After becoming chancellor in 1969, Brandt made it the motor of sweeping geopoliti-
cal transformation.
The first diplomatic fruits of Ostpolitik were a pair of 1970 treaties with the Soviet
Union  and Poland. In the Moscow Treaty, signed on 12 August 1970, the Federal
Republic and the Soviet Union vowed to respect the existing borders of all European

154╇ Schlink (n 147) 545. 155╇ibid.

 Political Justice 135

states and to hold inviolable both the Oder-Neiβe Line (Poland’s Western border) and
the b ­ order between the two Germanys. The Warsaw Treaty, signed 7 December 1970,
­similarly acknowledged the Oder-Neiβe Line as perpetual and inviolable. The Federal
Republic thereby renounced definitively any hope that Germany would return to its
1937 borders.
On the day of the signing, Brandt visited the Warsaw Ghetto memorial. There, in one
of the most moving political gestures of the twentieth century, the chancellor dropped
to one knee in an expression of contrition and atonement. Brandt, an anti-Nazi and an
exile, had knelt, Der Spiegel reported, ‘for all who needed to kneel but didn’t—because they
dared not or could not or could not dare’.156 The gesture made Brandt an international hero.
A year later, it helped him win the Nobel Prize. But a contemporary survey found that
while 41 per cent of Brandt’s countrymen thought the gesture fitting, 48 per cent thought it
exaggerated.157
Many West Germans considered the Warsaw Treaty itself an injustice. The so-called
Heimatvertriebene—German citizens expelled from their homes in territory separated
from Germany at the end of the Second World War—must now abandon any hope of
­recovering lost land and property. In reply, Brandt insisted that the treaty surrendered
nothing that had not been long since squandered. But it was a bitter blow to many who had
dreamed of an ultimate homecoming in the fullness of time. West German politicians from
all parties—with an eye on the power of the refugee vote—had promised to keep the border
question open. The Moscow and Warsaw treaties slammed it shut.
Ratification of the treaties was delayed until the United States, France, Great Britain,
and the Soviet Union could regulate the status of Berlin in light of the new atmosphere of
détente. Germany’s erstwhile occupiers did so in the so-called ‘Four-Power Agreement’ of
3 September 1971. After this, the Soviets expected a swift ratification. But by this time the
Brandt coalition’s majority had shrunk to two votes. After the treaties were signed, several
members of the Bundestag with refugee backgrounds bolted for the opposition benches.
On 25 April 1972, the CDU/CSU faction hazarded the first call for a constructive vote of
no-confidence in the history of the Federal Republic. The constructive no-confidence vote
was one of the Basic Law’s historic novelties. The CDU/CSU opposition hoped to employ
it to oust Brandt from the chancellorship and replace him with the Union leader, Rainer
Barzel. The gambit failed by two votes. Two, perhaps three Union members hadn’t backed
Barzel, and their defection saved the SPD–FDP coalition. (It later became known that one
of them, Julius Steiner, had been paid 50,000 Marks by the East German State Security
Ministry to vote against Barzel.)
The coalition survived, but the treaties remained at risk. Not only were they losing
parliamentary support, they also faced a constitutional challenge.158 Former inhabitants
of Schlesien and Northeast Prussia contended that the treaties violated their property
rights under Article 14 GG. The parents of a fifteen-year-old boy who was living with
his grandparents in what was formerly Hindenburg complained that the treaty would
cost their son his right to German citizenship—a violation of Article 16 GG. The com-
plaints, filed at the eleventh hour, asked the Court to annul the treaties and block their
ratification.

Hermann Schreiber, ‘Ein Stück Heimkehr’ Der Spiegel (14 December 1970).

156 
157 
In Conze (n 17) 438–39.
158  Conservative jurists also assailed the constitutionality of the treaties publicly. One of the most strident

among them was Hermann Weinkauff, former president of the Bundesgerichtshof. See Hermann Weinkauff, ‘Die
Ostverträge sind verfassungswidrig’ Rheinischer Merkur (Bonn, 18 February 1972).
136 Confrontation, 1971–1982

Time was short. The Bundestag had already voted to ratify the treaties; the Bundesrat
followed suit shortly thereafter. The treaties would enter force on 3 June 1972; the Court was
pressed to process the petitions swiftly.
Ernst Benda, the chief justice, was on holiday—celebrating Pentecost in a Sardinian
villa without telephones or electric lights. His rural reverie was interrupted by the arrival
of Italian carabinieri with an urgent message from the West German embassy in Rome.
Within hours, Benda was on a plane to Stuttgart, and thence to Karlsruhe to handle the
appeals.159
The Court rejected both of them.160 The strict standards for issuing a preliminary injunc-
tion, the First Senate explained, were even more exacting when the challenged legisla-
tion enacted an international treaty. Only a pressing general interest could justify such an
injunction, and no such interest was present in the case at hand. The individual complain-
ants asserted rights that, even without the treaties, they could not currently enjoy. No great
harm would come from waiting for the Court to resolve the case on its merits. That resolu-
tion was long in coming; the Court rejected the complaints on the merits only in 1975.161 By
then, the treaties had been in force for three years.
The Warsaw and Moscow treaties prepared the way for a third, even more dramatic
agreement—the Basic Treaty (Grundvertrag) between the Federal Republic of Germany
and the German Democratic Republic. Brandt had called at the beginning of his chancel-
lorship for a shift, vis-à-vis the German Democratic Republic, from ‘a regulated next-to-
one-another to a with-one-another’. The Basic Treaty sought to give concrete shape to this
designedly nebulous phrase. The treaty was the centrepiece and culmination of Brandt’s
foreign policy. It was as central to Brandt’s geopolitical vision as the European Defence
Treaty had been to Adenauer’s. Negotiations for the treaty were conducted by Egon Bahr,
now an all-purpose minister in Brandt’s cabinet, and by Michael Kohl, an East German
undersecretary of state.
From the beginning, the proposed treaty generated enormous hostility among oppo-
sition politicians. But among the population at large, it enjoyed majority support. The
SPD adroitly cast the November 1972 Bundestag elections as a referendum on Ostpolitik
and on Brandt, the policy’s popular architect. The ploy worked brilliantly. The returns of
19 November yielded a 3.1 per cent gain for the SPD and a 1.2 per cent loss for the CDU/
CSU. The SPD won 45.8 per cent of the vote; the Union parties 44.9 per cent. For the first
time since Weimar, the SPD was the strongest party in Parliament. The FDP also gained
strength, growing by 2.6 per cent to 8.4 per cent. The combined 5.7 per cent gain gave the
Social–Liberal coalition a solid majority. Smaller parties all but disappeared; their com-
bined share shrivelled below 1 per cent. Brandt had come a long way since his near ousting
seven months earlier. The coalition trumpeted the outcome as a ringing endorsement of its
Ostpolitik and a mandate for its expansion.
The government didn’t wait long to act on this presumed electoral charge. Thirty-three
days after the election, on 21 December 1972, Bahr and Kohl signed the Basic Treaty in East
Berlin.
The language of the treaty was sometimes elliptical and often opaque. But it was an
unmistakably the ideals of rapprochement and normalization, of détente and Wandel
durch Annäherung. The treaty prescribed that the two signatories ‘develop normal
good-neighbourly relations with one another on the foundation of equal rights’; that they

159  See ‘Gegen den letzten Akt’ Der Spiegel (29 May 1972).
160  33 BVerfGE 195 (1972); 33 BVerfGE 232 (1972). 161  40 BVerfGE 141 (1975).
 Political Justice 137

renounce violence and the threat of violence; that they honour the principles enshrined in the
UN Charter, ‘particularly the sovereign equality of all states, the respect of independence,
self-sufficience, and territorial integrity, the right of self-determination, the observance of
human rights and non-discrimination’; that they abandon all pretence at representing one
another internationally; that they honour one another’s independence, domestically and
abroad; that they work toward mutual agreement in a host of policy areas; and that they
exchange representatives in one another’s capitals. The treaty made clear that it had no effect
on treaties previously signed by its two parties—including, crucially, the ‘Western Treaties’
signed in earlier decades by the Federal Republic—and stipulated that the treaty would
enter force when the two states exchanged notes following domestic ratification.
Many opposition politicians abhorred the treaties. But with the coalition’s comfortable
majority they were powerless to block it in Parliament. Some were tempted to try to arrest
the treaty via constitutional complaint. The CDU top brass, however, opted against this,
reasoning that the party would pay a terrible political price for taking a question to the
Court that had been answered decisively by the voters.
One CSU politico, however, did not feel beholden to the studied conclusions of the
­federal CDU leadership. After being forced out of the government in the aftermath of the
Spiegel Affair, Franz Josef Strauβ had returned to cabinet as finance minister in the grand
coalition in 1966. With the Union parties now in opposition, he was finance minister in
Rainer Barzel’s shadow cabinet and spokesman for the CDU/CSU Bundestag faction in
matters of economic and financial policy. Strauβ was a strident, implacable enemy of the
new Ostpolitik. With regard to the Basic Treaty, he was less deferential than his colleagues
to the coalition’s ostensible mandate—less willing, as Strauβ himself put it, to let quotidian
politics trump constitutional principle.
But Strauβ, as the Spiegel affair made clear, had no weak stomach for legal and consti-
tutional irregularity. Strauβ was not so much troubled by constitutional scruple as he was
driven by an unusual and highly developed sense of historical mission. Strauβ claimed
never consciously to have decided to become a politician, but to have been roused by an
instinctual sense of duty to work to prevent any repetition of the historical errors that led
to the German catastrophes of the twentieth century.162 Strauβ was an earnest patriot who
believed passionately that Germany—united Germany—had a role to play in world affairs.
Strauβ believed that the Basic Treaty was flatly at odds with his (and Germany’s) histori-
cal mission. On the one hand, the treaty made concessions to a totalitarian regime with-
out demanding in return the ‘abolition of the death machine on the border of the Federal
Republic’.163 On the other hand, it sealed and solemnized the division of his Fatherland. The
treaty was thus doubly intolerable. If killing it required a trip to Karlsruhe, so be it.
As boss of the CSU—the CDU’s Bavarian sister—Strauβ could access the Court through
routes the national CDU leadership did not control. Though the Bavarian state govern-
ment initially balked Strauβ ultimately persuaded the state’s minister president, Alfons
Goppel, and his reluctant cabinet, to challenge the treaty’s constitutionality. In late May
1972, Strauβ stirred controversy by attending Goppel’s cabinet meetings and wielding his
‘whole weight as party chairman’ to bring Goppel and his peers around.164 Strauβ even
hinted that he had inside knowledge from one of the justices that Bavaria’s complaint would

162  See the epigraph quotation from Strauβ in Stefan Finger, Franz Josef Strauβ. Ein politisches Leben (Olzog

2005) 11.
163  Franz Josef Strauβ, ‘Menschliche Erleichterungen zählen nicht’ FAZ (10 November 1972).
164  Franz Josef Strauβ, Die Erinnerungen, 4th edn (Berlin Settlers 1989) 451.
138 Confrontation, 1971–1982

not go fully awry in Karlsruhe.165 Goppel and his cabinet finally yielded, and the complaint
was filed. ‘We Bavarians’, Strauβ prated, ‘mustn’t be afraid to be the last Prussians when
history demands it of us’.166
The complaint was fourfold. The treaty violated (1) constitutional commands to preserve
the unity of the German state and to pursue reunification; (2) the rights of other parts of
Germany (i.e. the Eastern states) to accede to the Federal Republic; (3) constitutional pro-
visions regarding the status of Berlin; and (4) the Federal Republic’s duty to protect and
provide for Germans living in the East.
The challenge came late. If the individual complaints against the Warsaw and Moscow
treaties were filed at the eleventh hour, the Bavarian assault on the Basic Treaty began min-
utes before midnight. The Bundestag voted to approve the treaty on 11 May 1973. The two
Germanys fixed 20 June as the date for the ‘exchange of notes’ that would make the treaty
binding international law. Brandt’s government refused to delay the exchange pending res-
olution of the constitutional challenge. Presumably, the exchange of notes would create a
fait accompli that a later decision by the Constitutional Court would be powerless to revise
or annul.
The Second Senate, then, had precious little time to answer an appeal that was juris-
prudentially bewildering and politically explosive. Court-watchers cried foul, complain-
ing that the government had tried to ‘override’ the Court.167 Ernst Friesenhahn, a former
justice, supported the treaty but chided the government for its heavyhandedness. He did so
with words first spoken by Adolf Arndt during the European Defence crisis: ‘The Federal
Government is constitutionally required to work together with the Constitutional Court
and duty-bound to avoid anything that could render difficult or impossible the Court’s
timely and effectual exercise of its competences’.168 Instead of honouring this principle,
Brandt’s government had shown the public ‘with what facility governments can outma-
noeuvre the highest court and render ineffectual the constitutional review of government
action provided for in the Basic Law’.169
The government countered that it was at the mercy of wider events. On 21 June, the World
Security Council would meet to decide whether to admit the two Germanys to the United
Nations. The treaty must be signed beforehand. Time was short, and tensions were high.
And brief as the proceedings were, there were glaring distractions along the way.
It was highly improbable that the Court could resolve the case on its merits before the
exchange of notes on 20 June. Indeed, the Second Senate admitted that it wouldn’t. The jus-
tices announced that they would release their judgment on the merits on 31 July. Bavaria,
predictably enough, asked the Court to enjoin the exchange of notes until after that date.
The Court responded on 4 June.170
The Senate was sharply split—at least in the reasons the justices gave for concluding, as all
of them did, that an injunction was not (for the time being) ‘urgently demanded’.171 The jus-
tices divided in groups of four. One group consisted of Walter Seuffert and Martin Hirsch,
both former SPD members of the Bundestag; Joachim Rottmann, the recent FDP appoint-
ment; and Hans Rupp. The other quartet was comprised of Justices Wand, Schlabrendorff,

165  Werner Schneider, ‘Bundesverfassungsgericht und Politik—die Klage Bayerns gegen den Grundvertrag.

Vorgeschichte und Verlauf des Prozesses—das Urteil und seine Bewährung’, (unpublished—on file with the
Hans-Seidl-Stiftung, Munich) 31.
166  In Finger (n 162) 357.
167  See Bruno Waltert, ‘Karlsruhe braucht Zeit zu seiner Entscheidung’ Die Welt (31 May 1973) 4.
168  Ernst Friesenhahn, ‘Hüter der Verfassung’? (1973) 6 Zeitschrift für Rechtspolitik 189.
169 ibid 188. 170  35 BVerfGE 193 (1973). 171 ibid 201.
 Political Justice 139

Geiger and Rinck—all CDU/CSU nominees. The public could hardly help noting how
neatly the Senate divided on partisan lines.172
The reasons the first foursome gave for denying an injunction raised eyebrows. In light
of the Court’s prior jurisprudence, the foursome noted (specially citing the Saar Statute
judgment of 1955 and, of all things, the Communist Party judgment of 1956), there was
small chance ‘that the Senate would arrive at the conclusion that the treaty law was incom-
patible with the Basic Law (and therefore null and void)’.173 At worst, the Senate might con-
clude that certain particulars of the treaty were constitutional only if interpreted a certain
way—in which case it would do little harm if the treaty had meanwhile entered force.174 The
risks of withholding an injunction were small; the dangers of issuing one, immense. The
remaining four justices agreed with the latter conclusion, but stressed that the Rechtsstaat
always pays a price when laws enter force before they can be reviewed as the constitution
prescribes.175 For the moment, this consideration was outweighed by the foreseeable inter-
national repercussions of an injunction. But it was a cost that should not be ignored.176 This
was a non-subtle reproach to the government’s unwillingness to wait. But it struck contem-
poraries less forcibly than the impression that the four judges most decisively opposed to an
injunction seemed already to have made up their minds on the merits.
This impression was reinforced by accounts of extrajudicial utterances by the young-
est of their number. Towards the end of April, the Badische Neuste Nachrichten reported
an extraordinary speech given by Justice Rottmann at an FDP gathering in Karlsruhe.
Justice Rottmann reportedly opined, among other things, that for purposes of public law
the German Reich had ceased to exist in 1945; that the Federal Republic and the German
Democratic Republic were separate, sovereign states whose relations with one another were
governed exclusively by international law; and that Ostpolitik was a major contribution to
European peace, eminently suited to the needs of the present hour.177 If the report was true,
it shattered all confidence that Rottmann was approaching the case impartially.
On 28 May, shortly after asking the Court to quash the treaty, Bavaria asked the Court
to exclude Rottmann for bias. A week earlier, one CSU leader encouraged his comrades
to challenge the treaty in Karlsruhe by hinting at the possibility of Rottmann’s recusal: ‘It
cannot be said that this proceeding … is lost from the outset…. We also don’t know what
changes in personnel may arise between now and the day of the Second Senate’s decision’.178
In an official statement, Rottmann maintained that the newspaper report grossly mis-
represented the content of his lecture and insisted that he would review the Basic Treaty
with an open mind. Taking the disclaimer at face value, Rottmann’s colleagues (with one
exception) rejected the bias petition on 29 May.179 On 4 June, as noted earlier, Rottmann
was among the foursome most strongly opposed to an injunction. On 13 June, however, a
letter became public that Rottmann had written on 7 May to Wilhelm Gutmann, a former
Baden-Württemberg state legislator from the Right-wing National Democratic Party (NPD).
In the letter, Rottmann confirmed that his speech (albeit with some oversimplication) had in
the main been correctly reported. The Constitutional Court’s earlier statements, he added,

See ‘Treue gegen Treue’ Der Spiegel (25 June 1973).

172  173  35 BVerfGE 193 (n 170) 197.
174  Former Justice Gerhard Leibholz privately told a gathering of colleagues that he found the foursome’s
consideration of the ‘probability’ of the complaint’s success procedurally adventurous and politically appalling.
In Stenographische Niederschrift der Veranstaltung der Deutschen Vereinigung für Parlamentsfragen, e.V am
13.6.1973 zum Thema ‘Das Bundesverfassungsgericht—Zuflucht und Hürde für die Politiker’ (1973) 17. At the
very least, Leibholz suggested, such a consideration required approval from the Plenum.
175  35 BVerfGE 193 (n 170) 199. 176  ibid 199–201.
177  See ‘Bundesverfassungsrichter Rottmann: BRD und DDR gleichbereichtigte Staaten’ Badische Neueste

Nachrichten (Karlsruhe, 28 April 1973).

178  In Schneider (n 165) 29. 179  35 BVerfGE 171 (1973).
140 Confrontation, 1971–1982

that the German Reich still existed de jure, may have been defensible fifteen or twenty years
earlier when the Court made them, but they had been swept aside by intervening political
realities.180 The Basic Treaty, Rottmann affirmed, was constitutionally unproblematic.
The letter prompted a second bias petition, this one narrowly successful. The same
four justices who on 4 June had been most sympathetic to the injunction petition voted
on 16 June to exclude Justice Rottmann.181 This foursome included Justice Willi Geiger,
who seven years earlier had objected in high dudgeon to the dismissal, under uncannily
similar circumstances, of Justice Leibholz from the Party Finance judgment. The three
justices whom Rottmann had joined in the injunction decision now dissented en bloc
from Rottmann’s exclusion.182 Once again the split was glaringly partisan. All the world
realized that if Rottmann had been excluded in response to the first bias petition, the first
injunction petition might have turned out differently. ‘I feel like I’ve been tossed into the
cogs of a political wheelwork’, Rottmann sighed. ‘And I cannot escape the impression
that it was a constructed one’.183 Speculation that Justices Schlabrendorff, Rinck, Geiger,
and Wand had manoeuvred into a position where they could prevail on the merits at
Justice Rottmann’s expense was universal. The justices of the early 1970s seemed to cul-
tivate impressions of partisan attachment as assiduously as the justices of the early 1950s
worked to refute them.
The Second Senate, however, was full of surprises. After the final ratification of the treaty
on 6 June, Bavaria filed a second petition for a preliminary injunction. Following the exclu-
sion of Justice Rottmann, many expected this second petition to succeed. Instead, on 18
June, two days after voting narrowly to exclude Justice Rottmann, the Second Senate voted
unanimously to reject Bavaria’s second injunction appeal.184 This second, unanimous rejec-
tion came two days before the scheduled exchange of notes. The justices invoked the prin-
ciple of judicial restraint as they deferred to the government’s insistence (at oral argument)
that the treaty must enter force before the Security Council convened.185
The oral arguments held on 16 June were conducted behind closed doors. The justices
may have been persuaded by the disclosures of government representatives, including Egon
Bahr himself, at oral argument. But no one knew for sure, nor did anyone know what infor-
mation had been disclosed.
In any case, the ‘Union’ foursome had countered expectations. Some thought they had
experienced a change of heart; others suspected a failure of nerve. To critics, events of the
previous three weeks confirmed nothing if not the unfitness of the current justices for the
rigours of high politics. Der Spiegel opined that if there was a certain loser in the conflict
between Bonn and Bavaria over the Basic Treaty, that loser lived in Karlsruhe.186 The Court’s
judgment on the merits was still six weeks away. But for many the matter was moot. The
Frankurter Allgemeine Zeitung groused that the Second Senate’s pending judgment now
had ‘no more value than a seminar essay on the constitutional aspects of the Basic Treaty’.187
This was untrue. The merits question remained very much open, and the fires of controversy
soon leapt back to life. The Frankfurter Allgemeine itself did much to fan the flames.
Precisely one week after the Basic Treaty entered into force, Johann Georg Reiβmüller
launched a cannonade on the paper’s front page. A ‘leading [SPD] politician’, Reiβmüller
reported, had recently vowed that the government would not allow its Ostpolitik to be

180  See ‘Richter Rottmann schrieb und redete zuviel’ Die Welt (18 June 1973) 2.
181  35 BVerfGE 246 (1973). 182 ibid 255.
183  In ‘Richter Rottmann schrieb und redete zuviel’ Die Welt (18 June 1973) 2.
184  35 BVerfGE 257 (1973). 185  ibid 262–63.
186  ‘Treue gegen Treue’ Der Spiegel (25 June 1973). 187  ‘Was für Nachteile’? FAZ (19 June 1973) 1.
 Political Justice 141

demolished by ‘eight assholes in Karlsruhe’.188 Reiβmüller didn’t name his source. For
weeks, the media buzzed with speculation and SPD headquarters rang with denials. Some
suspected Horst Ehmke, Brandt’s flamboyant former chief of staff, but Ehmke denied the
charge vehemently.189 Other fingers pointed more persistently at Herbert Wehner, head of
the SPD Bundestag faction. It never became clear who, if anyone, had said such a thing.
One rumour held that the phrase originated with one of the justices, who wasn’t quoting
an SPD leader but offering a caricature of the government’s attitude toward. Helmut Kohl,
then minister president of Rheinland-Pfalz and soon the CDU’s national chief, thought the
slur—and the chancellor’s failure firmly to denounce it—betrayed a ‘highly questionable
constitutional understanding’ in government circles; an insensitivity even more evident
in the coalition’s heavy-handed push to present the Court with a fait accompli.190 Gerhard
Jahn (SPD), the justice minister, shot back that the government’s procedure vis-à-vis the
Bavarian complaint was beyond reproach. It was a sorry commentary on the current politi-
cal climate, Jahn continued, that unsubstantiated slanders were reported uncritically and
embraced unblinkingly.191
Even so, Jahn rushed to Karlsruhe to smooth matters over. The Court and the government
exchanged mutual assurances of respect. Before Jahn’s visit, some justices had been so indig-
nant that Benda called for a plenary meeting to establish once and for all the source of the
infamous affront. Some of Benda’s colleagues, though, wondered whether grave solemnity
in the face of a schoolyard insult wouldn’t do more to render the Court risible than to restore
its honour. The meeting was cancelled, ostensibly because the justices were satisfied with
a formal governmental repudiation and an official declaration of undiminished regard.192
But the sores still festered. The truly fatal feature of the remark, as Friedrich Karl Fromme
later noted, was not its irreverent term of abuse but its implicit threat of defiance—its sug-
gestion that the government would not accept an adverse outcome.193
Meanwhile the Second Senate laboured with dash and abandon to prepare the judgment
it had promised to deliver on the last of July. The judgment appeared on time; but it reflected
the rush with which it was written.194
The Senate began with some tough talk. Contrary to the public stance of former Justice
Gregor Geller that the treaty’s constitutionality was a non-justiciable ‘political question’,195
the justices indicated once again that there was no American-style political question doc-
trine under the Basic Law. It was incompatible with the Basic Law’s embrace of comprehen-
sive constitutional review, moreover, for the executive branch to override the Constitutional
Court.196 At the same time, judicial restraint had been the Court’s constant, self-imposed
precept. The Court could not evade its responsibility to review even the most politically
explosive of government actions; but it would always afford representative branches the
widest possible leeway.
To no one’s surprise, then, the Senate confirmed the constitutionality of the Basic Treaty.
To the surprise of many, it did so unanimously. But the really striking aspect of the judg-
ment was not its result but its reasoning. In fact, the Senate fused the two, holding that
the treaty was constitutional only ‘according to the interpretation given in the [Court’s]

188  ‘Die Regierung wird’s schon recht machen’ FAZ (27 June 1973) 1.
189  ‘Kohl: Höchst bedenkliches Verfassungsverständnis’ FAZ (7 July 1973) 1. 190 ibid.
191 ibid. 192  ‘Benda sagt Sitzung des Bundesverfassungsgerichts ab’ FAZ (14 July 1973) 1.
193  Friedrich Karl Fromme, ‘Gericht im Sog der Politik’ FAZ (29 January 1975) 1.
194  36 BVerfGE 1 (1973).
195  In Helmut Rieber, ‘Warnung vor Gang nach Karlsruhe’ Frankfurter Rundschau (18 January 1972) 2.
196 ibid 14–15.
142 Confrontation, 1971–1982

grounds for decision’.197 That interpretation, the justices wrote, was binding law for all state
authorities in the Federal Republic.198
This binding interpretation rested on two grounding propositions that the treaty, in
the Court’s reading, left and must leave unaltered. First, the justices stressed (with a rare
exclamation point) that it was a core premise of the Basic Law, and not merely a thesis of
public or international law, that the German Reich survived the capitulation of 1945, the
ensuing military occupation, and all that had happened since.199 The Reich emphatically
lived on; the crucial question was how. One group of public and international lawyers
subscribed to the so-called ‘identity theory’. Under this theory, the Federal Republic not
only succeeded to, but was identical with the German Reich. Another group put forth the
so-called ‘roof theory’ (Dachtheorie). This theory held that the Reich endured in its 1937
boundaries, but only as an unorganized umbrella entity, with no institutions of its own.
This Reich was latent and inchoate, encompassing the two separate legal–political orders
within its borders.200 The two theories, a logician might have thought, were irreconcilable.
But in its Basic Treaty judgment, the Second Senate united them.
Consistent with the ‘identity theory’, the Senate declared that ‘the Federal Republic of
Germany is … not the “legal successor” of the German Reich, but as a state is identical
with the state, “German Reich”’.201 But the justices then added that the Federal Republic,
with regard to its spatial dimensions, was only ‘partially identical’ (teilidentisch) with the
German Reich. ‘Identity does not require exclusivity’, the justices wrote. In other words, the
area covered by the GDR could also be part of the German Reich, a concession that smacked
of the ‘roof theory’. The GDR, the Senate held, ‘belongs to Germany, and in relationship
to the Federal Republic it cannot be considered a foreign country [Ausland]’.202 In further
keeping with the ‘roof theory’, the Senate observed that the Reich lived on but was currently
incapacitated (handlungsunfähig).203
This was a lot for the uninitiated to swallow. ‘Partially identical’ sounded like an oxymo-
ron; a dormant empire struck many as mystification. Initiates were even more perplexed.
The judgment’s framework allowed the Senate to save the treaty from annulment and the
Court’s prior jurisprudence from reversal. But it did so at the cost of theoretical coherence; it
did so, lamented Ulrich Scheuner, by brewing a pot of ‘indigestible conceptual porridge’.204
In the Senate’s view, however, the mysterious mixture was necessary to square the treaty
with the Basic Law’s inexorable command to pursue reunification. That command, the
Basic Treaty notwithstanding, remained in force.205 How to achieve that goal was left to the
wisdom and discretion of the Federal Republic’s political organs. The Brandt government,
the Court noted, believed that in the long run the Basic Treaty would facilitate reunifica-
tion. The justices may or may not have shared this view. But in the Basic Treaty judgment,
they explicitly deferred to it. They insisted, however, that the future policy of the Brandt
government—indeed, of all future governments—must never swerve, even rhetorically,
from the ultimate goal of reunification:

197  36 BVerfGE 1 (n 194) 3.

198  By thus elevating the status of its essential grounds of decision, the justices parted paths with custom and
traditional understanding.
199  36 BVerfGE 1 (n 194) 16.
200  See Wilhelm A. Kewenig, ‘Auf der Suche nach einer neuen Deutschlandtheorie’ (1973) 26 Die öffentliche

Verwaltung 797.
201  36 BVerfGE 1 (n 194) 16. 202 ibid 17. 203 ibid 16.
204  Ulrich Scheuner, ‘Die staatsrechtliche Stellung der Bundesrepublik. Zum Karlsruher Urteil über den

Grundvertrag’ (1973) 26 Die Öffentliche Verwaltung 583.

205  36 BVerfGE 1 (n 194) 17.
 Political Justice 143

No constitutional organ of the Federal Republic may abandon the restoration of state unity as a
political goal. All constitutional organs are bound in their policies to work toward the achieve-
ment of this goal and to avoid any policy that might impede reunification. This includes the
requirement to keep the demand for reunification alive at home and to advocate it ceaselessly
abroad.206

Planted between these lines, perhaps, was a rebuke to the chancellor who once called
reunification the ‘life lie’ (Lebenslüge) of the Federal Republic.207 ‘We must take note of the
fact’, Brandt told Die Welt am Sonntag in 1969, ‘that a reunification in the original sense is
no longer possible’. ‘It is the duty of the federal chancellor’, he added, ‘to tell his people the
truth, even when it is bitter’.208 The Court’s judgment warned against indulging such rheto-
ric too often, or extending it too far.
The justices rebutted opposition arguments more explicitly. The Basic Treaty was not,
as its critics maintained, a ‘division treaty’. Neither for the present nor for the future did
it absolve the federal government of the responsibility ‘to do everything in its power at all
times, so that the German people can once more organize itself as a unitary state’.209 This
outlook, the Senate held, must govern all measures designed to implement the Basic Treaty
or expand Ostpolitik. The Court added further that the Basic Treaty was only a de facto, not
a de jure, recognition of the GDR. The border between the Federal Republic and the GDR
was a creature of public rather than international law; it separated two quasi-states subsist-
ing within the enduring (but latent) state of ‘Germany as a whole’.210 To Bavaria’s invocation
of the fundamental rights of Germans suffering on the Eastern border, the Court answered
that the treaty did not violate fundamental rights; the GDR’s border practices violated the
treaty.211 But the justices stressed that the Federal Republic remained responsible for all
Germans, including those in the GDR, and must work at all times to protect their interests.
In the aftermath of the judgment, all parties claimed victory. Brandt’s coalition cele-
brated the judgment as a vindication of its Ostpolitik and a rebuke to those who alleged
that the treaty abandoned ship on reunification.212 Herbert Wehner gloated that Franz
Josef Strauβ had ‘taken a hammering’.213 But Strauβ’s party crowed in return that they had
successfully bound the federal government’s future foreign policy. Richard Stücklen, the
CSU state chairman, wrote to congratulate the Bavarian state government ‘on the success
of its complaint’.214 Union politicos cheered that the judgment gave the treaty desperately
needed clarity—that it bound the government, in implementing the treaty and expanding
its Eastern policy, to pursue German unity and to advocate the interests of all Germans.
In years to come, the judgment would become a powerful rhetorical ally in the hands of
the opposition. ‘Bavaria neither hoped nor could have hoped to achieve more with its peti-
tion’, wrote Walter Brunert in Die Welt.215 Strauβ himself agreed. Dictating his memoirs
fifteen years later, he effervesced: ‘The goal of Bavaria, the goal of the CSU, my goal was
accomplished’.216
Government officials and SPD sympathizers bristled at the opposition’s bluster. If all
Bavaria wanted was a binding interpretation, they complained, there was no need to ask

206 ibid 17–18. 207  Merseburger (n 17) 585. 208 ibid 584. 209  36 BVerfGE 1 (n 194) 25.

210 ibid 23, 26. 211 ibid 35.
212  See ‘Karlsruhe gibt Richtlinien für weitere Abkommen mit der DDR’ FAZ (1 August 1973) 1; Bruno Waltert,

‘Ein Urteil, an dem sich nicht rütteln läβt’ Die Welt (2 August 1973) 4; Hans-Herbert Gaebel, ‘Mit Karlsruher
Segen’, Frankfurter Rundschau (1 August 1973) 3; ‘Der Grundvertrag mit der DDR stimmt mit der Verfassung
überein’ Süddeutsche Zeitung (1 August 1973) 1.
213  In ‘Bonn: Entspannungsgegner abgeschlagen’ Süddeutsche Zeitung (1 August 1973) 2.
214 In ibid. 215  Bruno Waltert, ‘Die Richter weisen den Weg’ Die Welt (1 August 1973) 4.
216  Strauβ (n 164) 456.
144 Confrontation, 1971–1982

the Court to declare the law null and void, nor to race about the country accusing the
­coalition of violating the constitution. Privately, the government was deeply disappointed.
The judgment would hamstring Ostpolitik, not least through the impression it left with the
­government’s negotiating partners. East Germany’s official newspaper, Neues Deutschland,
dismissed the judgment as ‘the pipe dreams of a few Karlsruhe judges’.217 Other East
German polemicists saw in the judgment’s allegiance to reunification a brand of political
revanchism that belonged to ‘the rubbish heap of history’.218 Soviet screeds against the deci-
sion were equally shrill. A tirade in the magazine International Life accused the Court of
‘intentional falsifications’ and ‘direct distortions’.219
The Court had certainly not made future negotiations with Eastern powers any easier.
Althout it explicitly disclaimed being anything of the kind, the Basic Treaty judgment
was the Court’s most aggressive intervention to date in the foreign policy of the Federal
Republic. In government circles, the judgment unmistakably rankled. But the government,
still smarting from the ruckus over the anonymous FAZ quotation, restrained its anger. At
least for the time being.

D. Constitutional justice and European integration: 

the first Solange judgment
The Basic Treaty judgment went to the heart of the Federal Republic’s relationship with the
East; a judgment issued ten months later did the same for its ties to the West. The earlier
case inspected the crown jewel of Brandt’s foreign policy, the latter the enduring legacy of
Adenauer’s. There the matter was German division; here, European integration. The under-
lying facts were banal and the doctrinal issue straightforward. But the attendant procedural
and jurisdictional questions were explosive. In the Second Senate’s judgment of 29 May
1974, they exploded.
The European Economic Community was formed in 1957 when its six founding
nations—Luxembourg, Belgium, the Netherlands, Italy, France, and the Federal Republic of
Germany—signed the Treaty of Rome. Together with its unique cadre of supranational organs,
the Community had its own judicial arm, the European Court of Justice (ECJ) in Luxembourg.
From the outset, the relationship of community law to the domestic laws of the member states
was contested. In 1964, the ECJ asserted unequivocally the supremacy of community law, hold-
ing that member states had definitively transferred sovereign rights to the European level.220
In case of conflict, community law trumped domestic law—including, presumably, domestic
constitutional law. The ECJ itself would police the boundary between the two.
This holding put national constitutional courts in an awkward position. There was an
obvious tension between the ECJ’s declarations of supremacy and exclusivity and national
courts’ self-understanding as exclusive arbiters and guardians of national constitutions. In
the case of collision between community and constitutional law, national constitutional
courts could either defy the ECJ’s jurisdictional claims or abandon their own.
For many years the conflict lay dormant. Over time, although the EEC Treaty lacked a
fundamental rights catalogue and European legislators failed to produce one, the ECJ elab-
orated a fundamental rights jurisprudence based on general principles drawn from the legal

217  In ‘Kampf gegen ein Urteil’ FAZ (4 January 1974).

218  In Richard Häuβler, Der Konflikt zwischen Bundesverfassungsgericht und politischer Führung. Ein Beitrag
zu Geschichte und Rechtsstellung des Bundesverfassungsgerichts (Duncker and Humblot 1993) 61 fn 178.
219  In ‘DDR übernimmt sowjetische Kritik am Bundesverfassungsgericht’ FAZ (4 January 1974).
220 See Costa v ENEL, ECR 585 (6/64).
 Political Justice 145

traditions of the member states.221 Some observers thought hypothetical conflicts between
community and constitutional law might never materialize. Member state constitutional
courts, they reasoned, could safely defer to the ECJ’s exclusive jurisdiction, trusting that the
European court would safeguard fundamental rights in its application of community law.
A May 1971 judgment of the Belgian Court of Cassation, as well as a December 1973 judg-
ment of the Italian Constitutional Court, seemed to fulfil these expecations.222 The Belgian
and Italian courts acknowledged the ECJ’s rights jurisprudence and deferred to its jurisdic-
tion. Many expected Germany’s Federal Constitutional Court to follow suit.
The chance to do so was already pending, thanks to a 1971 referral from an adminis-
trative court in Frankfurt. An EEC directive, issued in 1967, required grain exporters to
obtain a licence and pay a security deposit that became non-refundable when the licence
expired. Along with regulations, directives are a form of ‘secondary’ community law (as
opposed to ‘primary’ community law, embodied in the community treaties themselves).
Implementation of directives is often entrusted to the domestic authorities of member
states. So it happened with the grain licensing directive. A Frankfurt grain firm that lost
its deposit complained to the Frankfurt administrative court that its forfeiture was unlaw-
ful. The administrative court submitted a referral to the ECJ asking whether the directive’s
forfeiture provision was compatible with community law. In a pair of judgments in late
1970 and early 1971, the ECJ confirmed that it was.223 In November 1971, the Frankfurt
court interrupted the proceeding for a second referral, this one to Karlsruhe. The admin-
istrative court asked the Constitutional Court whether, by applying the EEC directive, the
Frankfurt authorities had violated the firm’s fundamental rights—specifically its occupa-
tional ­freedom under Article 12 GG.
Before reaching this question, the Second Senate had to rule on the referral’s admissibil-
ity. Before reaching that question, the Senate had to decide whether only the Court’s Plenum
could resolve it. By a narrow vote of 5:3, the Senate answered the Plenum question in the
negative (whichever way it came out, the Senate’s holding wouldn’t reverse precedent) and
the admissibility question in the affirmative.224 The Senate stressed first that its consid-
eration of admissibility was limited. The only issue was whether the Court could review
the compatibility of secondary community law, as applied by German authorities, with the
fundamental rights provisions of the Basic Law. The Senate considered neither whether the
Court could review the compatibility of secondary community law with other constitu-
tional provisions, nor whether the Court could review the compatibility of primary com-
munity law with any part of the constitution.
The key constitutional provision was Article 24 GG, which said simply that the Federal
Republic ‘may, by legislation, transfer sovereign rights to international institutions’. This
clause, the five-justice majority clarified, could not be taken literally.225 Like all constitu-
tional provisions, Article 24 must be understood and interpreted in the context of the entire
constitution. It did not, in other words, empower Parliament to amend the constitution’s
basic structure or to alter its essential identity. Quite the contrary: Article 24 affirmatively
banned any international arrangement—including one created by amending community
treaties—‘that would abrogate the identity of the currently valid constitution of the Federal
Republic of Germany through an intrusion into its constitutive structure’.226 An essential
and irreducible element of that structure was the Basic Law’s rights catalogue. Article 24 did

221 
See the many judgments cited in 37 BVerfGE 271, 291–92 (1974).
222 See the discussion in Heribert Golsong, ‘Zu Bundesverfassungsgericht ‘Solange’-Beschluβ’ (1974) 1
Europäische Grundrechte-Zeitschrift 18.
223  ECR 11/70; also 38/70. 224  37 BVerfGE 271 (1974). 225 ibid 279. 226 ibid.
146 Confrontation, 1971–1982

not confer unqualified power to relativize those rights.227 Given the current state of com-
munity integration, the only acceptable bulwark against such relativization remained the
Federal Constitutional Court.
The majority conceded that the European Court of Justice, as currently composed, had
proved encouragingly friendly to fundamental rights.228 But this was a personal rather than
a legal guarantee. It was no substitute for a robust catalogue of rights established by a rep-
resentative parliament. In the absence of such a catalogue, German courts that needed to
apply community law, but saw a conflict between the relevant provision of community law
and a fundamental rights provision of the German constitution, were not only allowed but
required (after soliciting a binding interpretation of the European provision from the ECJ)
to refer the matter to the Constitutional Court.
The Second Senate limited this holding in two respects—one procedural, the other chron-
ological. Procedurally, the Court would not review community law directly in response to
individual complaints. Only lower courts applying community law in a concrete case could
solicit review from Karlsruhe. Moreover, the Court could not annul community norms; it
could only block their application in Germany. It would rule on the norms’ domestic appli-
cability, not their general validity. The chronological limit was expressed in a dramatic pas-
sage that gave the case its popular name (Solange). The Constitutional Court would review
the consonance of community norms with Basic Law rights only ‘[s]‌o long as [Solange]
the process of community integration has not proceeded to the point where community
law also contains a valid catalogue of fundamental rights, formulated by a Parliament and
comparable [adäquat] to the fundamental rights catalogue of the Basic Law’.229 The Court
suggested that the Community’s democratic deficit and fundamental rights lacuna would
not be permanent. The lack of legal certainty surrounding fundamental rights would likely
‘end with the current transitional phase’ of integration.230
The Senate’s review of the underlying complaint was terse. It took the majority less than
three pages to dismiss the claim that the EEC licensing requirement ran afoul of Article 12 GG.
The requirement was a ‘pure regulation of trade practice’ (reine Berufsausübungs regelung)
that merely affected the manner in which a trade could be practised. It left the complainants’
freedom of occupational choice untouched.231
But the rub, of course, was not that the Senate rejected the claim but that it reviewed the
question at all. On this point Justices Rupp, Hirsch, and Wand tartly dissented. Just three
years earlier, the dissenters pointed out, the Second Senate had held that, under Article 24
GG, once sovereign powers had been transferred to an international institution, organs of
the Federal Republic were bound to respect that institution’s sovereign acts. Tellingly, the
relevant ‘sovereign act’ in the earlier case was a judgment of the European Court of Justice.232
Moreover, the dissenters continued, the EEC’s protections for fundamental rights did not
differ essentially from the protections in the Basic Law.233 Both systems secured the core
essence of basic rights. The ECJ had already adopted and applied many of the core principles
of German constitutional law. It had even embraced the proportionality principle. This, for
the dissenters, was enough to satisfy Article 24.234 The majority’s call for codified rights
declared by a parliament was muddled and misguided. ‘Within a free and democratically
constituted community’, the dissenters wrote, ‘the protection of fundamental rights and
the democracy principle are not interchangeable; they are complementary’.235 Establishing
the democracy principle at the European level might well lead the legislature and executive to

227 ibid. 228  ibid 280–81. 229 ibid 285. 230  ibid 280–81. 231  ibid 289–90.
232 ibid 295 (citing 31 BVerfGE 145, 174 (1971)). 233 ibid 296. 234  ibid 296–97.
235 ibid 298.
 Political Justice 147

display a greater regard for fundamental rights; but it wouldn’t eliminate the need for judicial
review. The latter element seemed to the dissenters the more crucial; and this the Community
already had.
Quite apart from the majority’s faulty Article 24 analysis, the dissenters added that the Basic
Law itself precluded Karlsruhe review of community norms. Article 100(1) GG allowed lower
court referrals to the Constitutional Court only when lower courts questioned the constitution-
ality of state or federal—or the compatibility of state with federal—law. In other words, the law
referred for review must be German. By extending the Court’s review to non-German law, the
majority had expanded the Court’s jurisdiction beyond its constitutional boundaries.236 The
majority’s holding had violated the German constitution as well as invaded the ECJ’s jurisdic-
tion.237 That holding was dangerous as well as wrong. It created a special status for the Federal
Republic and exposed it to the justifiable accusation of having violated the Community’s char-
ter treaty and endangered its legal order.238
If the dissent was brusque, scholarly criticism was blistering. Not since the Civil Servants
judgment two decades earlier was a judgment exposed to such ferocious academic assault.
Hans-Peter Ipsen thundered that the judgment was ‘wrong … fallacious, superfluous, and
legally-politically mistaken’; that it ought to be hurled post-haste ‘out of the world’; and that it
was ‘procedurally and substantively, juristically and legal-politically groundless’.239 Following
the Senate’s three dissenters, Gert Meier saw in the judgment a ‘double breach of law’ (ein dop-
peltes Rechtsbruch): a violation of community law and of the Basic Law itself. Meier dismissed
the Court’s anticipations of a European parliament and charter of rights as ‘political phan-
tasies’.240 Heribert Golsong, formerly chancellor of the European Court of Human Rights in
Strasbourg, warned that the Senate’s holding would ‘shake the Community to its legal—and
therefore also to its political—foundations’.241
The professors’ rage stemmed from wounded vanity as well as intellectual disgust. Oceans
of ink had been spilt on the question of conflicts between community and national law, but
the Second Senate’s judgment ignored this literature entirely. ‘The judgment would possibly
have read differently’, huffed Manfred Zuleeg, a future ECJ judge, ‘and would certainly have
increased in persuasive power, if the judges would have engaged with scholarly opinions.
Certainly a judicial decision needn’t be a learned treatise, but the total eschewal of dialogue
with the academy has its price!’242
Naturally the EEC itself was less than pleased with the critique. The President of the European
Comission sent a deeply agitated letter to West Germany’s foreign minister, Hans-Dietrich
Genscher.243 The tone of many attacks on the judgment was overdone. The most withering
criticism came from committed Europeanists insensitive to a Court torn between its duty, on
the one hand, to ensure the operability of community law and its obligation, on the other hand,
to enforce the demands of a domestic constitution. In some quarters, the judgment won praise
for its pragmatism; in others, for its timely critique of community shortcomings.244

236  See ibid 300–02. The majority contended that its holding was true to the basic thought of Article 100, which

was that lower courts shouldn’t apply laws that violate the constitution. ibid 284–85.
237 ibid 299. 238 ibid.
239 Hans Peter Ipsen, ‘BVerfG versus EuGH re ‘Grundrechte’. Zum Beschluss des Zweiten Senats des

Bundesverfassungsgerichts vom 29. Mai 1974’ (1975) 10 Europarecht 1.

240  Gert Meier, ‘Anmerkung’ (1974) 27 NJW 1704, 1705. 241  Golsong (n 222) 17.
242  Manfred Zuleeg, ‘Das Bundesverfassungsgericht als Hüter der Grundrechte gegenüber der
Gemeinschaftsgewalt’ (1975) 28 Die Öffentliche Verwaltung 46.
243 See president of the European Commission to Hans-Dietrich Genscher, 19 December 1974,

Friedrich-Ebert-Stiftung (Bonn) (Nachlass Martin Hirsch, 1/MHAC000109).

244  For positive assessments, see Hans Heinrich Rupp, ‘Zur bundesverfassungsgerichtlichen Kontrolle des

Gemeinschaftsrechts am Maβstab der Grundrechte’ (1974) 28 NJW 2153; Bodo Börner, ‘Deutsche Grundrechte
und Gemeinschaftsrecht’ (1976) 29 NJW 2041.
148 Confrontation, 1971–1982

The grimmest scholarly forebodings never materialized. The predicted flood of com-
plaints against community norms never burst. Two years after the decision, one commen-
tator quipped that a judgment that had originally blared like a trumpet’s blast now echoed
like the tremolo of a wooden flute.245 Within the Federal Republic itself, the tremulous flute
was all the general public ever heard. The press all but ignored the judgment. But the press
did catch on to a growing grumble of scholarly discontent with the ostensibly decreasing
quality of the Court’s work, and a more general apprehension about its expanding political
power.246

E. Karlsruhe v. Bonn?: the first Abortion judgment

‘Scarcely any political question arises in the United States’, runs a famous Tocquevillian
apercu, ‘that is not resolved, sooner or later, into a judicial question’.247 What Tocqueville
observed in Andrew Jackson’s America many West Germans abhorred in Willy Brandt’s
Federal Republic. In his critique of the Basic Treaty judgment, Ulrich Scheuner bemoaned
the ‘by now fixed tendency of politicians in the Federal Republic to settle what are at core
political questions through constitutional law’.248 Recent judgments had thrown in relief,
as never before, the Court’s political role, and the Court had fulfilled that role in an unprec-
edentedly interventionist fashion. But in the half-decade since the Social––Liberal coali-
tion came to power, the Court had not annulled a single law the coalition had passed. Some
began to think it never would. Not long after issuing its Solange decision, the Second Senate
sustained a 1973 amendment to the federal social security law against the contention of
two Union-governed states that the amendment lacked necessary Bundesrat approval.249
Der Spiegel cooed that the decision foiled Union hopes of making the Bundesrat an effec-
tive instrument of opposition, and provided a cautionary tale about transferring political
disputes to Karlsruhe.250
Just as some were concluding the Court might prove more sympathetic to reform legisla-
tion than the Union hoped or the coalition feared, the Social–Liberal reform agenda shifted
significantly. To begin with, the coalition had a new captain. On 16 May 1974, the pragmatic
Helmut Schmidt replaced the visionary Willy Brandt as chancellor. Brandt’s resounding
electoral triumph in November 1972, followed by the signing of the Basic Treaty the next
month, marked the zenith of his career. There followed eighteen months of steady decline.
‘The beginning of my second chancellorship’, Brandt later wrote, ‘already stood under an
unlucky star’.251 Shortly after his election victory, Brandt underwent a laryngeal operation.
As Brandt recovered, his second cabinet took shape largely in his absence. Schmidt and
Herbert Wehner led the negotiations. The resulting cabinet was not Brandt’s. Especially
damaging was the departure—engineered by Schmidt—of Horst Ehmke, whose efficiency
and energy compensated for Brandt’s deficient work ethic.
Over the next few months, Brandt suffered from deep depression. The corridors of the
capital buzzed with rumours of his heavy drinking and reckless womanizing. The media

245  Börner (n 244) 2041.

246  See, e.g., Robert Leicht, ‘Richterwahlen vor der Tür’ Süddeutsche Zeitung (17 December 1974) 4 (noting
that ‘publications in legal scholarship have for some time traced a decrease in the quality of the Constitutional
Court’s jurisprudence’ and that scholars were ‘especially critical of the work of the Second Senate’).
247  Alexis de Tocqueville, De la démocratie en Amérique, vol 1 (Robert Laffont 1986 (1835)) 258.
248  Ulrich Scheuner, ‘Die staatsrechtliche Stellung der Bundesrepublik. Zum Karlsruher Urteil über den

Grundvertrag’ (1973) 26 Die Öffentliche Verwaltung 581.

249  37 BVerfGE 363 (1974). 250  ‘Formale Finten’ Der Spiegel (19 August 1974).
251  Willy Brandt, Begegnungen und Einsichten. Die Jahre 1960–1975 (Hoffmann and Campe 1978) 579.
 Political Justice 149

that had once lionized the chancellor began to lose interest. Within the government, Brandt
was the butt of increasingly sharp—and in Wehner’s case, savage—criticism. Wehner
accused Brandt of laziness, self-indulgence, and even stupidity. ‘What the government
lacks’, Wehner told journalists in Moscow, ‘is a head’.252 Brandt was already reeling when,
on 24 April 1974, news broke that his close advisor, Günter Guillaume, was an East German
spy. The Guillaume affair needn’t have driven Brandt from office, but the jaded chancellor
resigned before it had the chance. The Social–Liberal coalition remained in power, but its
charismatic founder was gone.
Well before Brandt’s resignation, the coalition’s reformist energy began to subside.
The 1972 election had given the government a plausible mandate for reform; but the fol-
lowing year a world oil crisis deprived it of the resources necessary to carry out its ambi-
tions. International recession ensued. What Eric Hobsbawm once called the capitalist
‘Golden Age’253 was over, and with it the Federal Republic’s remarkable postwar boom.
The coalition’s faith in future progress and reformist optimism largely evaporated. Helmut
Schmidt assumed office in a sober spirit, grounded by a Weberian ethic of accountability
and a Bismarckian emphasis on the art of the possible. Modesty and pragmatism were his
watchwords. ‘Reforms are only practicable’, Schmidt said in an early interview, ‘when one
can afford them’.254 This was a far cry from Brandt’s brassy bid to dare more democracy,
empower the populace, and reshape the nation. Schmidt’s ascension marked more than a
change of leadership. It marked the end of a constitutional moment.
It turned out also to be the beginning of a constitutional crisis.
A month after Schmidt took office, the Bundestag passed a law that was the culmination
of a five-year effort to reform of the Criminal Code. In 1969, Brandt had vowed to breathe
life into the Basic Law’s decree that the Federal Republic was a ‘social Rechtsstaat’. Brandt’s
coalition sought to promote social and legal justice by advancing reforms in criminal and
family law. In a host of areas, traditional criminal sanctions were replaced by monetary
fines. A particularly prominent field of liberalization was the law of sexual crimes. Adultery
and abandonment of a pregnant woman were decriminalized, as was homosexuality, except
where designed to protect youth.255 The crimes of pandering, procuring, and pornography
were substantially narrowed.256 More controversial were plans to reform section 218 of the
Criminal Code, which criminalized elective abortions.257 All parties agreed that the provi-
sion must be reformed; the question, bitterly disputed, was how.
Section 218 originated in the Prussian Criminal Code of 1851 and was passed down
through the codes of the North German Federation (1870) and the united German Reich
(1871). Calls for liberalization, led by the legendary SPD jurist Gustav Radbruch, began in
the Weimar era. Radbruch proposed a Fristenlösung, or term solution, that would decrimi-
nalize abortion in the early weeks of pregnancy. The proposal failed, though criminal
sanctions for abortions were softened, only to be intensified once more during the Third
Reich. The Nazis condemned elective abortion as an ‘attack on the life force [Lebenskraft] of
the German people’, even as they used coercive abortion as an instrument of racial policy
against persons deemed racially inferior or genetically unfit.

See ‘Was der Regierung fehlt, ist ein Kopf’ Der Spiegel (8 October 1973).
252 

See Eric Hobsbawm, Age of Extremes: The Short Twentieth Century, 1914–1991 (Vintage Books 1994) 225.
253 
254  In Conze (n 17) 466.
255  See Michael Kandora, ‘Homosexualität und Sittengesetz’ in Ulrich Herbert (ed), Wandlungsprozesse in

Westdeutschland. Belastung, Integration, Liberalisierung 1945 bis 1980 (Wallstein 2002) 379.

256  See Conze (n 17) 402.
257  On the postwar debate over this provision, see Michael Gante, § 218 in der Diskussion: Meinungs- und

Willensbildung, 1945–1976 (Droste 1991).

150 Confrontation, 1971–1982

The sexual revolution of the 1960s transformed public attitudes about abortion; the num-
ber of abortions skyrocketed. The gap between the law’s strict letter and its lax enforcement
fairly yawned. Traditionally, abortion could be justified only on ‘medical’ grounds—that
is, if carrying the child to term would seriously threaten the life or health of the expectant
mother. In the late 1960s and early 1970s, ‘medical’ necessity came to include a host of other
circumstances as well—genetic or environmental threats to the health of the unborn child,
pregnancies resulting from rape or molestation, social crises in the life of the mother, etc.
By one count, the number of officially certified ‘medical’ abortions ballooned from 2,826 in
1968 to 17,814 in 1975.258 Some estimated the number of illegal abortions at over a quarter
million. Affluent women flew to England, where abortion laws had been liberalized in 1967.
Calls for reform in West Germany were loud and legion. Parliamentary proposals fol-
lowed two models—variations on Radbuch’s term model, and the so-called ‘indications
model’ (Indikationenmodell), which would decriminalize abortions under specific, enu-
merated circumstances. Among the three major parliamentary parties, the FDP faction
favoured the former, the Union the latter, and the SPD split internally.
As early as 1970, a committee on criminal reform that included prominent FDP par-
liamentarians proposed legalizing abortion during the first trimester of pregnancy. The
proposal won ringing approval from a wide array of women’s groups. Marching under the
mantra, ‘My belly belongs to me’, women’s organizations rallied in support. At the height
of the movement, beginning in mid-1971, scores of prominent German women took part
in a self-accusation campaign, confessing publicly to have undergone illegal abortions.259
The campaign was spearheaded by feminist leader Alice Schwarzer and included promi-
nent actresses like Romy Schneider and Senta Berger. Photos of attractive female celebrities
appeared on the 6 June 1971 cover of Der Stern under the heading, ‘I had an abortion’. The
confession was signed by 374 women.
Two justices of the Constitutional Court, both devout Catholics, joined the debate on the
opposite side. Willi Geiger of the Second Senate suggested in the Rheinischer Merkur that
the term solution was unconstitutional.260 Hans Brox of the First Senate added in a Catholic
periodical that the right to life, guaranteed by both natural law and by Article 2 GG, also
shielded the unborn.261
Popular agitation prompted additional proposals. In early 1972, the justice minister,
Gerhard Jahn, proposed a bill embracing the indications model; shortly thereafter, a group
of Social Democrat members of the Bundestag issued a counterproposal adopting the term
model. After the Bundestag elections in November 1972, Parliament faced four separate
proposals, only one of which—proposed by the federal government—opted for the term
model. On 18 June 1974, after months of sometimes acerbic debate, the government’s term
proposal passed with a narrow majority. The new law legalized all abortions during the first
twelve weeks of pregnancy.
Almost as soon as the law was passed, 193 Christian Democrats in Parliament,
together with the CDU- or CSU-controlled state governments of Schleswig-Holstein,
Baden-Württemberg, Bavaria, and the Saarland, asked the Constitutional Court to annul
it. The law, Christian Democrats argued, violated the sanctity of life, secured by Article 2
GG, and offended human dignity, enshrined in Article 1.

258  Hans-Georg Dederer, ‘BVerfGE 39, 1—Schwangerschaftsabbruch I’ in Verfasssungsrechtsprechung (n 153).

259  The gesture followed a similar act of protest in France, led by prominent writers and intellectuals like
Simone de Beauvoir.
260  Willi Geiger, ‘Ethik und Recht. Implikationen der Fristenlösung’ Rheinischer Merkuer (Bonn, 23 February

1973) 31.
261  Hans Brox, ‘Das Recht auf Leben’ Der Dom (Paderborn, 6 May 1973).
 Political Justice 151

By the Court’s unhurried standards the case moved swiftly. Oral arguments were held in
late November 1974; the First Senate announced its judgment for the following February.
Weeks before the judgment was to be announced, its putative outcome was leaked.262 The
law, sources suggested, would be invalidated. The news elicited a furious outbreak of popular
emotion. Women’s organizations and Leftist groups planned protest marches in several cities
for the day of the decision. At a protest in Berlin on 16 February, demonstrators poured red
paint on the steps of a government building to symbolize the blood of women who died from
illegal abortions.263
The leak sparked attacks on the Court itself. In a scalding editorial in Der Spiegel, Rudolf
Augstein summarized the bill of particulars against the justices:
The justices place themselves, when they see fit, in the place of the legislature, in that they
make laws rather than review and interpret them;
They hinder, with an internally contradictory jurisprudence, the foreign policy of the Federal
Republic vis-à-vis its western and eastern partners;
They are too conservative when it comes to reprimanding a sitting government, but equally
too conservative when it comes to repudiating a rigidified Catholic or otherwise reactionary
moral dogma;
They place the dead letter [of the law] over human needs and developments; and, what’s more,
Their judicial workmanship bears no relation to the role they demand and fulfill.264

Augstein went on to resurrect talk of a Red Senate (the Second) and a Black (the First). He
groused that the Court’s standards of recusal were applied inconsistently to Catholics and
non-Catholics: Justice Rottmann had been excluded from the Second Senate’s judgment on
the Basic Treaty while Hans Brox took part in the First Senate’s decision on abortion. The
Court, Augstein scoffed, had crowned itself a superior chamber of Parliament—as nothing
less than ‘our Lord God’s law office’.
Coalition politicians were more circumspect. Dismayed as they were by the news that the
amended section 218 was to be annulled, they knew that future reforms—in abortion and
other areas—would require the Court’s approval. They also harboured painful memories of
the infamous one-liner reported during the Basic Treaty debate. For the most part, coalition
leaders kept mum.
But there were exceptions. Even before the leak, Lisolette Funcke (FDP), vice president
of the Bundestag, announced that ‘the women’ would neither accept nor respect a judg-
ment against the term solution.265 After the leak, Gerhart Baum (FDP), an undersecretary
of state, feared that the CDU/CSU opposition would take unseemly courage from the vic-
tory. ‘They’ll take everything to Karlsruhe’, Baum cringed. ‘As a legislature we’ll … hardly
be able to move’.266
The most prominent critic was Helmut Schmidt himself. Speaking on the television show
Panorama on 3 February, the chancellor cited the Basic Treaty and Solange judgments as
evidence of an unsettling expansion of judge-made law (Richterrecht). On the abortion
question, Schmidt continued, it would be astonishing if the Constitutional Court reached
an outcome at odds with that reached by the Austrian Constitutional Court, the French

262  See ‘Unseres Herrgotts Kanzlei’ Der Spiegel (3 February 1975); Die Welt (25 February 1975); Die Zeit (28

February 1975).
263  ‘Denunzieren wider Willen’ Die Zeit (14 March 1975).
264  ‘Unseres Herrgotts Kanzlei’ Der Spiegel (3 February 1975). The phrase stems from the title of a novel by

Wilhelm Raabe.
265  In Friedrich Karl Fromme, ‘Gericht im Zog der Politik’ FAZ (29 January 1975) 1.
266  In ‘Mit allem nach Karlsruhe’ Der Spiegel (3 February 1975).
152 Confrontation, 1971–1982

Constitutional Council, and the United States Supreme Court.267 If it did, one might doubt
whether the Court rightly understood its role. By ruling against the law, the chancellor
implied, the Court would be playing politics rather than applying law.268
Some Left–Liberals doubted the wisdom of Schmidt’s remarks, but an SPD party
convention formally endorsed it.269 Conservatives rose to the Court’s defence in terms
reminiscent of the 1950s advocacy of Adolf Arndt, who died in 1974.270 Roman Herzog,
a constitutional law scholar and future president of the Constitutional Court, thought
Schmidt’s comments betrayed a faulty understanding of the German constitution and a
woeful naivety of comparative law.271 In a speech given earlier at the Free University of
Berlin, Ernst Benda anticipated Schmidt’s critique when he denied that the Court had any
intention to thwart the political process or stand as ‘schoolmaster’ of the nation.272 Later
in the decade, the chancellor and chief justice would lock horns more directly. Meanwhile,
the Court’s actual decision was still pending. And though the judgment’s outcome was
suspected in advance, its content still managed to astonish.
An estimated 10,000 women marched in protest in various cities—3,000 in Munich,
2,000 in Hamburg, 1,500 in Frankfurt, and between 1,500 and 2,000 in Karlsruhe itself.273
Expecting a negative judgment, the protesters bemoaned a perceived setback for women in
the early months of what had been declared the international ‘Year of the Woman’. In ironic
articles in the Frankfurter Allgemeine Zeitung, Friedrich Karl Fromme noted the incongru-
ence of the protesters with Karlsruhe’s wonted tranquility. Fromme praised the justices for
their ‘business-as-usual’ conduct in the centre of the national spotlight. He was less kind to
the coalition’s lawyer, Horst Ehmke, who arrived at the Court building with all the modesty
of a rock star, emerging from a flashy sports car flanked by his fashionable young wife. 274 By
other accounts, protests in many cities were longer and louder than expected.275
Within the courthouse itself, an army of journalists and photographers increased both
the temperature and the population density. Tension was high, and the anticipation great.
Embarrassed by the earlier leak, the Court treated its written decision like a state secret. No
copies of the judgment had been pre-released to members of the government—not even to
the justice ministry. Instead, Wolfgang Heyde, a ministry lawyer, left Bonn by helicopter
at 8 a.m. on the morning of the decision for a fast flight to Karslruhe. Arrived at the Court,
Heyde was given a sealed copy of the judgment, which he was allowed to carry back to the
capital only after Benda had announced the decision’s basic tenor. Heyde left on a return
flight to Bonn around 11:15 a.m., but was allowed to break the seal only after the decision
had been fully announced in Karlsruhe. The ministry received permission from the Court

267  In 1974, the Austrian and French courts held that liberalization of abortion law did not violate the right to

life guaranteed in the European Convention on Human Rights, which was incorporated into the domestic law of
both countries. In 1973, the US court ruled that restrictions on abortions during the first trimester of pregnancy
violated the penumbral right to privacy. See Roe v Wade, 410 US 113 (1973).
268  See the reports in Robert Leicht, ‘Kritik an Karlsruhe fällt auf die Politiker zurück’ Süddeutsche Zeiting

(5 February 1975); ‘Richterschelte’ FAZ (5 February 1975) 8; ‘Angemaβte Dienstaufsicht’ Frankfurter Rundschau
(7 February 1975) 1.
269  ‘Ständiger Miβbrauch’ Frankfurter Rundschau (7 February 1975) 3; ‘Parteitag billigte die Kritik am BVG’

Frankfurter Rundschau (17 February 1975).

270  See Michael Hansen, ‘Karlsruhe—Grenze für Politiker’ Die Welt (7 February 1975) 4.
271  ‘Herzog warnt vor falschem Verständnis des Verfassungsgerichts’ FAZ (7 February 1975) 5.
272  See ‘Benda: Verfassungsgericht kein Schulmeister der Politiker’ Der Tagesspiegel (2 February 1975); Die

Welt (3 February 1975) 2.

273  ‘Die Richter zwingen die Koalition einer Neufassung des §218’ Die Welt (26 February 1975) 1.
274  ‘Wohltuende Distanz zwischen den Zentren von Politik und Justiz’ FAZ (26 February 1975) 3; ‘Ich muβ mal

zur Demonstration in die Stadt’ FAZ (27 February 1975) 3.

275  ‘Erregte Sprechchöre beim Schweigemarsch’ Süddeutsche Zeitung (26 February 1975) 3.
 Political Justice 153

to open the decision only around 1 p.m., minutes before Hans-Jochen Vogel, the justice
minister, was to discuss the judgment in a press conference.276
What did the secret decision say? First, a majority of justices held that the right to life
guaranteed to ‘everyone’ in Article 2(2) GG encompassed to prenatal life.277 This finding
was in keeping with the Court’s principle that, in cases of doubt, the preferred interpre-
tation is the one that most strengthens the fundamental right in play.278 The Basic Law’s
protection of the right to life, moreover, was stronger than that offered by the Weimar
constitution—stronger, presumably, than that of other national constitutions—because
the postwar constitution had been enshrined against the backdrop of Nazism’s virulent
contempt for life.279 Article 2’s framing history, the Senate noted, also supported extend-
ing the right to life to the unborn280—a point that was sharply disputed by the judgment’s
dissenters and academic commentators.281 Unborn life was further protected by Article 1’s
consecration of human dignity. A foetus was human and as such possessed dignity, which
the constitution declared sacrosanct.282 It was irrelevant that the foetus was unconscious of
its dignity and unable to preserve it. The state must preserve it, beginning at the moment of
individuation and implantation roughly fourteen days after conception. The state’s duty to
protect was comprehensive. It forbade the state to injure developing life, but also required
the state to protect unborn life from threats at the hands of others—including the unborn
child’s mother.283
Expectant mothers, on the other hand, enjoyed countervailing constitutional rights of
their own. Pregnancy belonged to a woman’s ‘intimate sphere’ and was therefore shielded
by constitutional guarantees of dignity, bodily integrity, and personal freedom. A woman’s
right to develop her personality included the right to avoid the obligations of parenthood.
That right was constitutionally recognized and protected. But it was not unlimited. As the
text of Article 2(1) explained, it was limited by the rights of others, the constitutional order,
and the moral law. If a foetus was merely part of a woman’s body, the law could not consti-
tutionally regulate abortions. But a foetus was an independent being, shielded by rights that
restricted a mother’s personal freedom. The rights of an unborn child and the rights of a
mother unwilling to bear that child were at irreconcilable odds. The vindication of the latter
required the abolition of the former. Determining which right prevailed required careful
balancing.284
That balance, the majority explained, must be oriented toward human dignity.
Focusing on dignity led the Senate to conclude that protecting foetal life trumped a preg-
nant woman’s right of self-determination. Pregnancy, child-bearing, and child-rearing
might impair a woman’s opportunities for development; but an abortion destroyed an
unborn life entirely. In the Court’s constellation, life was a greater value than freedom;
and abortion was a greater threat to life than undesired motherhood was to freedom. This
precedence applied, in principle, for the entire duration of the pregnancy. It could not, for

276  ‘Wie das Urteil nach Bonn kam’ Die Welt (26 February 1975) 1; Klaus Dreher, ‘Das Tauziehen geht wieder

los’ Süddeutsche Zeitung (26 February 1975) 3.

277  39 BVerfGE 1, 36 (1975). 278  ibid 36 (citing 32 BVerfGE 54, 71 (1971) and 6 BVerfGE 55 (1957)).
279 ibid 36. 280 ibid 38–40.
281 See, e.g., Kriele, ‘Anmerkung’ (n 105)  222; Wolfgang Abendroth, ‘Das Abtreibungsurteil des

Bundesverfassungsgerichts’ (1975) 8 Kritische Justiz 121; Josef Esser, ‘Bemerkungen zur Unentbehrlichkeit des
juristischen Handwerkszeugs’ (1975) 30 JuristenZeitung 555.
282  39 BVerfGE 1 (n 277) 41. 283 ibid 42.
284  ibid 43. This, to put it lightly, was a very different framing of the abortion question than that put forth by

Justice Blackmun in his little-loved majority opinion in Roe v Wade, an opinion that famously refused such a bal-
ance on the grounds that a foetus was not a ‘person’ for purposes of the Fourteenth Amendment, and therefore
not a rights-bearer at all. Whatever the shortcomings of the First Senate’s judgment, it at least persuaded both
sides of the abortion debate that the values that mattered to them had entered its analysis.
154 Confrontation, 1971–1982

any specified period, be placed in doubt.285 The state must protect an unborn child until
it was born.
How to fulfil this obligation was primarily a question for the legislature.286 In answering
that question, however, the legislature must observe certain principles. As the judgment
progressed, the Senate’s enumeration of principles read increasingly like substitute legis-
lation. The state’s first goal, the justices explained, must be to discourage abortions. If no
other means sufficed, such discouragement required the threat of criminal sanction. There
were cases, the justices acknowledged, in which requiring a woman to give birth was con-
stitutionally intolerable. Obviously, a woman could not be obliged to carry a child at the risk
of her own life or health. In addition, the majority cited approvingly a (rejected) legislative
proposal to legalize early abortions on ‘eugenical, … ethical (criminological) [cases of rape],
and social’ grounds, or on grounds of distress.287
‘In all other cases’, however, ‘abortion must remain a punishable legal wrong [strafwür-
diges Unrecht]’—not only illegal but criminal.288 Parliament could decriminalize abortions
only if it found another deterrent that, with equal effect, reduced the number of abortions
and expressed the legal order’s disapproval of them. The reform law’s provision for individ-
ual medical counselling was inadequate. An indications model backed by criminalization
would be much better. The Senate was reluctant to countenance other possibilities: ‘Given
the high value of the legal good to be protected, experiments are not admissible’.289 So much
for legislative leeway.
The Senate noted, almost in passing, that the old section 218 was unconstitutional as well.
Having criminalized too much, that law was enforced too little.290 Parliament’s reform law
was null, but so was the status quo ante. The legislature must try again, for ‘[t]‌he Court may
not place itself in the position of the legislature’.291
The judgment ended boldly. As if in response to Schmidt’s censure, the majority noted
that reference to judicial decisions in other countries could not influence the Court’s
deliberation. Germany was unique. The Basic Law arose in direct response to the horrors
of Nazism. As an answer to the murderous inhumanity of the Third Reich, the postwar
constitution’s concern for human life and dignity was especially pronounced. 292 These
principles were unimpeachable, immune to shifts in popular views. ‘Even a general
change in the population’s prevailing views on the matter’, the justices wrote, ‘assuming
such a change were to be established could do nothing to alter’ these core principles.293
It was a long judgment—the profoundest revision of the legislative process in the Court’s
quarter-century history. Benda’s summary lasted more than an hour. Benda then called for
a ten-minute break before Justice Rupp-von Brünneck read a dissenting opinion signed by
herself and Justice Simon.294
Rupp-von Brünneck’s decision to read her dissent publicly was unusual. So was Benda’s
call for a break beforehand. The purpose of the break became clear when it ended. During
the pause, Justice Werner Böhmer had left the building. The official line was that he wasn’t
feeling well. In reality, Böhmer preferred not to listen to what he knew was an unusually

285 ibid. 286 ibid 44. 287 ibid 49. 288 ibid 50–51. 289 ibid 60. 290 ibid 52.

291 ibid 51. 292 ibid 67. 293 ibid.
294  Though only two justices signed the dissent, Benda explained that this didn’t necessarily mean the

vote within the Senate was 6:2. Many gathered from this announcement that Justice Karl Haager disagreed
with the majority as well. See, e.g., ‘Fristenregelung verhindert’ Süddeutsche Zeitung (26 February 1975) 1–2;
‘Fristenregelung vom Verfassungsgericht verworfen:  Unvereinbar mit dem Grundrecht auf Leben’ FAZ (26
February 1975) 1.
 Political Justice 155

sharp dissent. ‘I won’t let myself be insulted’, Böhmer reportedly vowed—Ich lasse mich
nicht beschimpfen.295
Rupp von Brünneck read from her dissent in a voice quivering with hard-kept anger.296
It was a poignant moment—the Court’s only woman rising to contradict a judgment passed
on all women by a majority of five men. Some heard echoes of the American dissenting
tradition of Brandeis and Frankfurter, Harlan and Holmes.297 The crux of the dissent was
that the Court was guilty once more—guilty more than ever—of overreaching. More egre-
giously even than in the University Governance judgment, the justices had usurped the
prerogative of the legislature.
The centrality of the right to life, Rupp-von Brünneck began, was not in question. Nor
was the state’s duty to protect the unborn. The question was not whether to protect fetal life,
but how. And that was a question not for the Court but for the legislature. The majority had
not only disregarded the legislature’s considered response, it had imposed an alternative of
its own—an unprecedented duty to criminalize. This was not merely wrong, it was revolu-
tionary. ‘Our strongest objection’, the dissenters wrote,
is directed against the fact that for the first time in constitutional jurisprudence an objective
value decision should serve to saddle the legislature with a duty to level criminal sanctions—that
is, to impose the strongest imaginable invasion of the citizen’s sphere of liberty. This distorts
the function of fundamental rights into its opposite. If a fundamental right’s objective value
decision to protect … should suffice to derive therefrom a duty to punish, fundamental rights,
[instead of] a bulwark of safeguards for liberty, could surreptitiously become the basis for a
plethora of regulations restricting liberty.298

In the dissenters’ eyes, the term solution was a reasonable response to the tension between
protecting unborn life and affording freedom and equality to expectant mothers. Further
than this the Court need not inquire. The majority’s case for German exceptionalism by
reference to the Nazi past was a spurious exercise in rhetorical Vergangenheitsbewältigung.
The tyrant rulers of the Third Reich had stiffened sanctions for abortions; the elected lead-
ers of the Federal Republic were trying to do the opposite. The majority justices listened
to Rupp von Brünneck’s passionate reading in stony silence—wondering, as a reporter
for Die Welt suspected, how the Senate’s work might proceed after this unprecedented
‘Eklat’.299
The judgment raised more than collegiality problems. ‘The controversy concerning the
role of the highest court’, predicted Robert Leicht in the Süddeutsche Zeitung, ‘will now
erupt in full fury for the first time’.300 Bruno Friedrich, an SPD member of Parliament,
feared ‘a malevolent poisoning’ of popular sentiment, wrought by the Republic’s first ‘emo-
tionally waged constitutional conflict’.301 Even those, like Leicht, who said they could live
with the judgment, bewailed the Court’s overreaching (Kompetenzüberschreitung). The
Court’s inevitable loss in public esteem, Leicht warned, would not only wreak mischief
for the Court itself; it would endanger the whole constitutional structure of the Federal
Republic.302

295  ‘Zuchtmeister für Bonn und Bürger’ Der Spiegel (3 March 1975); ‘Frau von Brünnecks Auftritt:  Das

Tribunal wurde zur Szene’ Die Welt (27 February 1975) 2.

296  Enno von Loewenstern, ‘Auch der alte §218 ist verfassungswidrig’ Die Welt (26 February 1975) 2.
297  See, e.g., Kriele, ‘Anmerkung’ (n 105) 222. 298  39 BVerfGE 1 (n 277) 73.
299  ‘Frau von Brünnecks Auftritt: Das Tribunal wurde zur Szene’ Die Welt (27 February 1975) 2.
300  Robert Leicht, ‘Grenzüberschreitung in Karlsruhe’ Süddeutsche Zeitung (26 February 1975) 4.
301  In Klaus Dreher, ‘Das Tauziehen geht wieder los’ Süddeutsche Zeitung (26 February 1975) 3.
302  Robert Leicht, ‘Grenzüberschreitung in Karlsruhe’ Süddeutsche Zeitung (26 February 1975) 4.
156 Confrontation, 1971–1982

Many critics were quite acerbic. The Frankfurter Rundschau styled the judgment a
‘Karlsruhe Encyclical’.303 Other papers reviled the judgment as a religious credo parading
as a judicial decision.304 Still others mocked the Court’s pretensions to stand as an ‘ersatz
government’ or ‘super authority’.305 Particularly scornful was Der Spiegel. Days after the
Abortion decision, a Spiegel reporter began a combative interview with Ernst Benda by ask-
ing whether the Court wished ‘to seize power in Bonn’?306 The interview that followed was
more accusation than inquiry. The interviewer alleged in various ways that the Court had
exceeded its mandate, and the chief justice, with mounting irritation, denied the charge.
(By contrast to the sustained J’accuse it hurled at the chief justice, Der Spiegel lionized the
dissenters, running an adulatory feature on Justice Rupp-von Brünneck.)307 Another arti-
cle accused the Court of crowning itself ‘Moral Preceptor to Government and Citizen’.308
Never, Der Spiegel thundered, ‘has the Karlsruhe Court so drastically displayed its omnipo-
tence; and never has it been so clear to politicians how easily they can be surrendered to the
men in the red robes’.309
The politicians thus vulnerable to surrender, both winners and losers, were more
restrained. Rudolf Seiters, the CDU floor leader in the Bundestag, cautioned that ‘cries
of triumph would be out of place’.310 SPD leaders similarly pleaded for prudence as they
looked for a silver lining. Hermann Dürr noted that the judgment did not merely pre-
scribe the CDU/CSU indications model; it allowed for ‘considerably more’.311 Willy Brandt,
still party chairman, said little about the judgment itself. But in a classical Brandtian
gesture—magniloquent and vague—he assured that ‘[e]‌ven after the judgment women
can rest assured that we will not leave them alone with their troubles’.312 Within the cab-
inet, expressions of disappointment were subdued. In his official response to the judgment,
Hans-Jochen Vogel, the justice minister, promised to respect the judgment, but insisted that
the government’s defence of the rejected law remained ‘cogent and conclusive’.313 The judg-
ment, Vogel added, was particularly disappointing in light of the ‘understandable expecta-
tions of millions of women’.314 In all official statements, the government urged the citizenry
to engage the judgment in a measured discussion.315
Academic criticism of the judgment was sometimes measured, sometimes not. In any
case it was abundant. Many critics agreed that the Court had erred by not merely con-
demning one legislative response but by prescribing another.316 Others admonished that it
was not the Court’s comission to inform and uphold the moral conscience of the nation.317
More generally, the majority’s methodology and workmanship made scholars squirm.318

303  Roderich Reifenrath, ‘Die Karlsruher Enzyklika’ Frankfurter Rundschau (26 February 1975).
304  See Joachim Besser, ‘Glaubenssätze in Urteilsform’ Vorwärts (6 March 1975) 2.
305  Florentine Hoffmann, ‘Ersatzregierung oder politische Supergewalt’ Welt der Arbeit (7 February 1975).
306  ‘Karlsruhe—ein verkappter Gesetzgeber?’ Der Spiegel (3 March 1975).
307  ‘… bes. in sittlicher Hinsicht’ Der Spiegel (3 March 1975).
308  ‘Zuchtmeister für Bonn und Bürger’ Der Spiegel (3 March 1975). Die Zeit argued in a similar vein, charac-

terizing the justices as the self-appointed ‘moral guardians of the nation’. ‘Die Sittenwächter der Nation’ Die Zeit
(28 February 1975).
309  ‘Zuchtmeister für Bonn und Bürger’ Der Spiegel (3 March 1975).
310  Klaus Dreher, ‘Das Tauziehen geht wieder los’ Süddeutsche Zeitung (26 February 1975) 3.
311 ibid. 312  ‘Ärzte für Indikationenlösung’ Die Welt (26 February 1975) 1.
313  ‘Die Richter zwingen die Koalition einer Neufassung des §218’ Die Welt (26 February 1975) 1.
314  ‘Bundesregierung mahnt Bevölkerung zu besonnener Diskussion’ FAZ (26 February 1975) 1, 3.
315 ibid.
316  See Kriele, ‘Anmerkung’ (n 105) 223. Kriele also referred to the judgment as a ‘raiding action on the terrain

of the legislature’.
317  Christian-Friedrich Menger, ‘Das verfassungsgerichtliche Urteil zu § 218 StGB—Gesetzgebung durch das

BVerfG’? (1975) 66 Verwaltungsarchiv 402, 403.

318  See, e.g., Esser (n 281).
 Political Justice 157

Professor Josef Esser cringed at the ‘windiness’ of the Court’s reasoning. Esser entitled his
review essay, ‘Notes on the Indispensability of Judicial Craftsmanship’.319
The judgment also triggered scholarly explosions of polemical wrath, the fiercest of which
came from Wolfgang Abendroth.320 ‘For the third time in a relatively short period’, Abendroth
roared, ‘the Constitutional Court has decided against the Basic Law’.321 Like other critics,
Abendroth chafed at the Court’s legislative presumption. Most of what one read in the major-
ity decision, he grumbled, had no business in the judgment of a constitutional court. The
Abortion judgment consisted entirely of legal–political considerations that the legislature may
and must observe—‘But the Constitutional Court is not the legislature’.322 What most pro-
voked Abendroth’s ire, however, were the majority’s remarks about German exceptionalism,
rooted, Abendroth believed, in a pernicious misreading of the German past.323 In the late 1930s
Abendroth had languished in Nazi prisons with doctors condemned for performing abortions.
He heard in the Court’s judgment an eerie echo. If the government and cabinet accepted the
judgment without censure, he warned, they would acquiesce in the step-by-step transforma-
tion of the Federal Republic into ‘an authoritarian state, in which even the smallest demo-
cratic reform promulgated by Parliament will collapse before the conservative prejudices of the
Constitutional Court’. If that happened, the political practice of the Federal Republic would
as little deserve to be called a democracy as the Weimar-era regime under which Heinrich
Brüning ruled by emergency decree.324 And, as in the days of Brüning, a fascistic successor
was waiting in the wings: Franz Josef Strauβ, whose constitutional petitions the Court seemed
so eager to grant. Abendroth called on all democratic and socialist forces to unite to save the
Rechtsstaat from the Court and from Strauβ.325
Very few critics went as far as Abendroth. But many whose voices were less shrill, and
whose perspectives were more centrist, worried audibly—and for the first time—that the
Court imperilled democracy.
The decision was unpopular. An Allensbacher Institute survey found that 50 per cent of
West Germans disapproved of the judgment; only 32 per cent approved.326 But this unpopu-
larity coincided with calls for perspective. Many writers stressed that while the judgment
invalidated the reform law, it also invalidated the status quo ante legem.327 Other writers
asked critics to balance indignation at this particular judgment with recognition of the
Court’s long-term contributions. An editorial in Die Zeit reminded readers ‘that the risk of
losing is the institutional price of constitutional justice’.328 Furor over the decision should
be tempered by recognizing ‘how much progress in recent decades came thanks to the
Constitutional Court’. As examples, the article enumerated cases involving gender equal-
ity, the legal status of illegitimate children, equal opportunity for political parties, freedom
of opinion, vocational freedom, and the rights of the accused. The article even credited the
1961 Television judgment with having ‘saved our democracy from the most serious threat
it had yet confronted’.329 Two weeks earlier, with the announcement of the judgment still
pending, Die Zeit published an interview with Gerhard Leibholz, in which the intellectual
leader of the early Court related a similar list of the Court’s contributions toward realizing
West German democracy and legitimizing the West German state.330

319 ibid. 320  Abendroth, ‘Das Abtreibungsurteil’ (n 281).

321  ibid 121. The other two occasions, in Abendroth’s view, were the University and Basic Treaty judgments.
322  ibid 125–26. 323 ibid 127. 324 ibid. 325  ibid 127–28.
326  See ‘Jeder zweite gegen das Abtreibungsurteil’ FAZ (7 March 1975) 5.
327  See Enno von Loewenstern, ‘Auch der alte §218 ist verfassungswidrig’ Die Welt (26 February 1975) 2.
328  ‘Vor Karlsruhe stammstehen?’ Die Zeit (28 February 1975). 329 ibid.
330  ‘An den Grenzen des Rechtes’ Die Zeit (14 February 1975).
158 Confrontation, 1971–1982

Controversy surrounding the Abortion decision focused the public’s attention on the
Court and its history. The Court’s defenders responded with a narrative that presented the
Court as a champion of democracy and vindicator of fundamental rights. In this narrative,
the Court played a central role in laying the democratic and constitutional foundations
of the Federal Republic. In light of this historic achievement, an unsavoury outcome in a
politically charged case could be swallowed with a pinch of perspective.
Hostility to the judgment ebbed with time as it became clear that the judgment’s practical
impact was less than many anticipated. In 1976, the Bundestag passed a new law adopting
the indications model almost exactly as outlined by the Court. The new law decriminalized
abortions during the first twelve weeks of pregnancy in specified circumstances, including
a controversial ‘distress’ or ‘social’ indicator, whose effect was to make abortions avail-
able to most women who wanted them. Three years after the law was passed, Justice Willi
Geiger—by then, at last, retired—complained that the social indicator was being inter-
preted too broadly.331 Ute Frevert, the preeminent historian of German women, later wrote
that the 1976 law granted a general ‘right to abortion’.332
Still, there could be no denying that the Abortion judgment marked an unprecedented
restriction of legislative leeway—the most striking instance yet of the Court telling
Parliament what to do. In a trio of 1972 cases, the Court had ordered the federal legislature
to revise prison regulations before a specified date;333 commanded state legislatures to
regulate certain facets of the medical profession directly;334 and suggested that the con-
stitution might impose a legislative duty to provide higher education opportunities for all
citizens.335 Many saw these judgments as cautious exceptions to the rule that the Court
must review what parliaments have already done, not dictate what they must yet do.336
With the University judgment, the Court entered a new plane, ruling that constitutional
guarantees of academic freedom imposed affirmative duties on the state, and prescribing
in detail how those duties must be fulfilled. In the Abortion judgment, the Court had gone
further still, not merely finding an affirmative duty, but rejecting the legislature’s attempts
to fulfil that duty and decreeing a stark alternative. In the Abortion judgment, the Court’s
enormous power was on awesome display—and in what many took to be a profoundly
conservative cause.
Ironically, the doctrine of affirmative duties was of progressive origin. In the Republic’s
early years, progressives hoped for a vigorous and binding interpretation of the Basic Law’s
social state provision—an interpretation that would commit the legislature to a sweeping
programme of socialization and state welfare. The doctrine’s most redoubtable champion
was Wolfgang Abendroth.

F.╇‘Radicals’ in the public service

A few days after the Court announced its Abortion judgment, an attempt was made to bomb
the Court’s building.337 A self-styled ‘revolutionary women’s group’ later confessed to the

331╇‘Soziale Indikation zu frei ausgelegt. Prof. Willi Geiger sprach in Saarbrücken’ Saarbücker Zeitung

(Saarland, 1 December 1979).
332╇ Ute Frevert, Frauen-Geschichte: zwischen bürgerlicher Verbesserung und neuer Weiblichkeit (Suhrkamp

1986) 280.
333╇ 33 BVerfGE 1, 12 (1972). 334╇ 33 BVerfGE 125, 158 (1972). 335╇ 33 BVerfGE 303 (1972).
336╇ See Kriele, ‘Anmerkung’ (n 105) 223.
337╇ See ‘Bombenanschlag auf Gebäude des BVerfG’ Der Tagesspiegel (5 March 1975); Walter Pfuhl, ‘Nur vier

Mann bewachten beim Bombenanschlag das Gericht’ Die Welt (6 March 1975); Hanno Kühnert, ‘Vogel: Anschlag
auf Rechtsstaatlichkeit’ Süddeutsche Zeitung (6 March 1975).
 Political Justice 159

attack. Damages were reported at 80,000 DM, but no one was injured. Press coverage of the
incident338 was overshadowed by the simultaneous abduction by terrorists of Peter Lorenz, the
CDU opposition leader in West Berlin and a mayoral candidate. Domestic terrorism haunted
the Federal Republic for more than a decade, beginning with the burning of two Frankfurt
department stores in 1968. There followed a series of bank holdups and, more menacingly, the
kidnap and murder of businessmen and politicians. Terrorism was largely a phenomenon of the
extreme Left; the radical Red Army Faction (RAF) was its most sensational manifestation.339
The birth of Left-wing terrorism coincided with campus unrest, the spread of Leftist stu-
dent movements, and the founding of a new German Communist Party, which, christened
DKP rather than KPD, sought to avoid its forerunner’s fate by promising to pursue its aims
within the parameters of the free democratic order. Politicians of all stripes were rattled by
resurgent radicalism. Though most looked more anxiously to the Left than to the Right,
there were also calls to ban the Right-wing National Democratic Party (NPD), which polled
alarmingly well (nearly 10 per cent) in the Baden-Württemberg state elections of April 1968
(but fell below the 5 per cent threshold in the 1969 Bundestag elections).
Radicalism, especially Left radicalism, provoked a backlash of popular enmity. Thrust
into opposition after the 1969 elections, the CDU/CSU hoped to exploit popular anti-Leftism
to regain power. Unionists blasted Brandt as soft on communism and demanded a ban of
the DKP. Brandt denied the charge of softness, but was queasy about seeking bans. The
chancellor knew as well as his opponents that asking the Court to ban the DKP would
hamper negotiations with the GDR. The chancellor would have to flash his anti-communist
mettle in some other way.
One route, also pushed by the Union parties, was to act vigorously against radi-
cals in the public service. On 28 January 1972, Brandt and the state premiers issued a
pair of declarations on the subject. The declarations, later labelled the ‘radical decrees’
(Radikalen beschlüsse), affirmed that ‘[o]‌n ly persons who can guarantee that they are pre-
pared at all times to uphold the free democratic basic order, as established in the Basic
Law, may be appointed to the public service. Civil servants, whether on or off duty, are
required to take an active part in maintaining this constitutional system’.340 A  candi-
date pursuing ‘activities inimical to the constitution [verfassungsfeindlich]’ must not be
appointed. Membership in an organization pursuing ‘anti-constitutional aims’ cast doubt
on a ­‘candidate’s readiness at all times to uphold the free democratic basic order. In most
cases, such doubts would justify rejecting the candidate’s application’.
The decree passed over the reservations of Brandt’s justice minister, Gerhard Jahn, and
of Herbert Wehner, who denounced the decree as the trigger for an ideological witch-hunt
(Gesinnungsschnüffelei), a harebrained bid ‘to defend the free basic order by taking the first
step toward its abolition’.341

338 See Die Welt (5 March 1975)  1; FAZ (5 March 1975)  1; FAZ (6 March 1975)  2; Frankfuter Rundschau

(6 March 1975) 1; Die Welt (7 March 1975) 2; FAZ (7 March 1975) 5; Süddeutsche Zeitung (7 March 1975) 2; FAZ
(12 March 1975) 3.
339  For a history of the RAF, see Klaus Pflieger, Die Rote-Armee-Fraktion: RAF, 14.5.1970 bis 20.4.1998, 3rd

edn (Nomos 2011). On the phenomenon of domestic terrorism more broadly, see Petra Terhoeven, Deutscher
Herbst in Europa: der Linksterrorismus der siebziger Jahre als transnationales Phӓnomen (Oldenbourg 2014);
Karrin Hanshew, Terror and Democracy in West Germany (Cambridge University Press 2012); Johannes Hürter,
Die bleiernen Jahre: Staat und Terrorismus in der Bundesrepublik und in Italien, 1969-1982 (Oldenbourg 2010).
340  On the history and aftermath of the declarations, see Gerard Braunthal, Political Loyalty and Public

Service in West Germany: The 1972 Decree Against Radicals and Its Consequences (University of Massachusetts
Press 1990).
341  Herbert Wehner, ‘Spiel mit dem Grundgesetz’ Ausburger Allgemeine Zeitung (Augsburg, 21 January 1972).

Former Justice Gehrard Leibholz also joined the debate. See Gerhard Leibholz, ‘Frage der verfassungsfeindlichen
Kräfte im öffentlichen Dienst’ (1972) 2 Analysen 17.
160 Confrontation, 1971–1982

The legal status of the decrees was unclear. Ostensibly restatements of prevailing practice,
the decrees inspired recruitment authorities zealously to exclude ‘extremists’ from the pub-
lic service. The decrees enjoyed broad support, both popular and political. They also pro-
voked raucous opposition, both at home and abroad. Leftists and intellectuals denounced
them as a ‘career ban’ (Berufsverbot), since many seeking jobs as public servants (teachers,
mail carriers, locomotive engineers, etc) had no hope of private employment.342 The term
Berufsverbot entered the international lexicon. Several continental eminences—Simone
de Beauvoir and Jean-Paul Sartre in France, Luigi Nono and Pier Paolo Pasolini in
Italy—shouted their solidarity with affected West Germans.343
There were many affected. Over the course of the 1970s, more than a million applicants
for public service were investigated for potential radical ties; thousands, having aroused
suspicion, were subjected to investigatory hearings, which were sometimes bullying and
often bizarre. More than a thousand applicants were excluded for extremism. Those denied
admission—92 per cent of whom were Leftists344—could appeal for review by adminis-
trative courts, but the legal standards for such review were vague and the resulting juris-
prudence mottled. The spectacle spurred a public outcry. That some judges reviewing
prominent cases were former National Socialists made the proceedings all the more galling.
‘Better to deprive all teachers and professors of their status as civil servants’, wrote Jürgen
Habermas, ‘than to submit even one of them to a judicial examination of their views’. Those
examinations were, ‘for all involved, quite as risible as they [were] unworthy’.345
Politicians and jurists hoped a Constitutional Court judgment would provide legal clar-
ity and foster judicial uniformity. But that would require a plaintiff hearty enough to bring
the case. This proved harder than one might expect: the DKP had ordered its members not
to file constitutional complaints, lest an overzealous Senate seize the chance to ban the
party!346 Ultimately, the matter reached the Court through judicial referral rather than
individual complaint.
While studying law at the University of Kiel, Heinrich Sämisch attended about forty
meetings of a Leftist law student group, the ‘Rote Zelle Jura’ (Red Cell Law). Sämisch
passed his professional examination in 1971 and applied for a mandatory legal intern-
ship (Referendarzeit) in Schleswig-Holstein. The internship required that he become a
professional civil servant (Beamter auf Wiederruf ) before taking a second examination,
which would qualify him to become a judge, a prosecuting attorney, or a practising lawyer.
Sämisch’s application failed. He had belonged, ran the official explanation, to a group whose
goals were antithetical to the constitution. Sämisch appealed to the Schleswig-Holstein
administrative court, which stayed its proceeding to ask the Constitutional Court whether
the state could require Referendar applicants to promise unswerving fealty, at all times, to
the free democratic order.
The Second Senate’s decision of 22 May 1975 was a strange one.347 The question before
the Court was whether the state could require applicants for Referendar service to swear a
loyalty oath as a condition of admission. The Senate reached this question only indirectly,
holding that, because Referendar service represented a continuation of legal education
rather than the commencement of civil service proper, the candidate in this case must be
admitted. This holding was all that the lower court submission required. But the Senate
refused to let the matter lie. In what many scholars bemoaned as an astonishing outburst

342  Braunthal (n 340) 34. 343 ibid 67–69. 344 ibid 48.

345 Jürgen Habermas, ‘Berufsverbote’ in Jürgen Habermas, Kleine politische Schriften I-IV (Suhrkamp
1981) 331.
346  Braunthal (n 340) 58. 347  39 BVerfGE 334 (1975).
 Political Justice 161

of obiter dicta, 348 the justices proceeded to grapple directly, and at some length, with the
abstract question of whether the Radical Decrees, on their face, violated the constitutional
guarantee of occupational freedom.
In principle, the Senate found, they did not. Civil servants must do more than verbally
acknowledge the validity of the constitutional order; they must fulfil their duties in the
spirit of its provisions.349 In a passage whose prose prompted yelps of scholarly disapproval,
the Senate added that a civil servant’s duty of constitutional loyalty, prescribed by Article
33 GG, ‘requires more than a formally correct, otherwise disinterested, cool, internally dis-
tanced stance toward the state and the constitution; it requires that civil servants in par-
ticular distance themselves unequivocally from groups and initiatives that assault, attack,
or defame this State, its constitutional organs, and its reigning constitutional order’.350
Those hoping the Court would bring legal clarity to the vague but loaded language of
the Radical Decrees were dismayed by a decision containing concepts still more vague and
expressions still more loaded. Elsewhere in the decision, the Senate asked whether recruit-
ment authorities could base their assessment of a candidate’s fitness on his mere mem-
bership in a party the authorities deemed unconstitutional, but which the Constitutional
Court had not formally banned. The Senate majority said yes;351 two dissenters (Walter
Seuffert and Hans Rupp) said no. The question, of course, was entirely beside the point. The
complainant had not belonged to an allegedly unconstitutional party; he had attended the
meetings of a constitutionally irrelevant student group.
Surprisingly, given the long controversy surrounding the Radical Decrees, the Second
Senate’s decision was little reported in the press.352 Academic commentary, much of it criti-
cal, was prolific. The decision did the opposite of what many scholars had hoped: it had
further polarized debate about the decrees and exacerbated the legal uncertainty surround-
ing them.353 Once again, the Second Senate got poor marks from a critical academy for its
technical performance. On a broader level, many were dismayed that, two months after the
First Senate had inverted the function of fundamental rights in the Abortion judgment,
the Second Senate had declined to enforce fundamental rights robustly in their classical
defensive context. Left-leaning critics groaned that the Court had been activist when the
government sought to liberalize, but deferential when the state sought to repress. Even in
its passivity, the Court’s judgment reached beyond what the concrete demands of the case
required. The time seemed out of joint; the Court was getting its role precisely backwards.

G.╇Parliamentary pay
After issuing yet another politically fraught judgment five months later, the Court was
once more accused of expanding its jurisdiction and indulging in obiter dicta. This time,

348╇S ee Rüdiger Zuck, ‘Zur Bindungswirkung der Radikalen-Entscheidung des BVerfG’ (1975) 15

Juristische Schulung 695; Helmut Simon, Hans Mommsen, and Peter Becker, ‘Verfassungsschutz durch
Verfassungszerstörung’ (1989) 22 Zeitschrift für Rechtspolitik 175; Dieter Schimanke, ‘Die Auswirkungen des
“Radikalenbeschlusses” des Bundesverfassungsgerichts auf Gesetzgebund und Verwaltungspraxis’ (1976) 8
Juristisches Arbeitsblätter 113.
349╇ 39 BVerfGE 334 (n 347) 348. 350╇ibid. 351╇ibid 359.
352╇ There was no notice at all in the 23 May 1975 issues of Die Welt, Die Frankfurter Allgemeine Zeitung, or Die

Süddeutsche Zeitung, nor in the next weekly issues of Der Spiegel or Die Zeit.
353╇See Klaus Lange, ‘“Radikale” im öffentlichen Dienst?’ (1976) 29 NJW 1809; Walter Schick, ‘Der

“Radikalenbeschluβ” des Bundesverfassungsgerichts—Inhalt und Konsequenzesn’ (1975) 29 NJW 2169; Martin

Kriele, ‘Feststellung der Verfassungsfeindlichkeit von Parteien ohne Verbot’ (1975) 9 Zeitschrift für Rechtspolitik
201; Christian-Friedrich Menger, ‘Parteienprivileg und Zugang Radikaler zum öffentlichen Dienst’ (1976) 67
Verwaltungsarchiv 105.
162 Confrontation, 1971–1982

however, the Court did so to a rumble of popular applause. The matter was parliamentary
pay—a matter that, as one MP admitted, Parliament itself should have settled long before.354
The complaintant was Karl-Heinz Schneider, an engineer and former Saarland state parlia-
mentarian who had been blocked from seeking a second term by a 1973 law that disquali-
fied managers of majority state-owned corporations from service in the state legislature.
Schneider was such a manager, and he complained that the law violated his ‘passive voting
rights’ by unduly restricting eligibility for elected office. The Second Senate rejected this
prong of Schneider’s complaint in a partial judgment issued on 21 January 1975.355 Some
questions, however, remained open. Schneider also challenged a provision that provided
only 60 per cent of the normal parliamentary salary to state employees who relinquished
their post on the state payroll in order to stand for the state Parliament.
In a 5 November 1975 judgment, the Second Senate agreed that this provision was uncon-
stitutional.356 But it didn’t stop there. It reviewed sua sponte a handful of provisions that
Schneider’s complaint had not even mentioned. This was unavoidable, the Senate breezily
explained, ‘when the challenged norm, by reference to other provisions or through a clear
internal relationship with other provisions, depends upon the latter in such a manner that
the unconstitutionality of the other norms demonstrates the unconstitutionality of the chal-
lenged norm’.357 Fair enough, perhaps. But the Senate didn’t stop there either. It conducted
instead a wholesale review of the constitutional aspects of parliamentary compensation.
And it was clear from the manner and method of the Senate’s reasoning that its conclu-
sions applied not only to the peripheral Saarland, but to all state parliaments; not only to
Karl-Heinz Schneider, but to every parliamentarian everywhere in the country—including,
perhaps especially, members of the Bundestag.
Already at oral argument it was clear that the Court was in a mood to consider big ques-
tions. In an ecumenical spirit, the Second Senate invited the Bundestag, the Bundesrat, the
federal government, other state parliaments, the Bavarian senate, and all political parties
represented in the Bundestag to file briefs and present oral argument. This invitation was
accompanied by a series of questions that sounded like the prompt for an academic con-
ference. For example: ‘Has, and to what extent has, the status of members of parliament
changed since the end of the nineteenth century? In particular, has the understanding of
an “appropriate compensation, securing the independence of the member” changed’?358
The closing query dutifully asked how these considerations bore on the constitutionality of
the challenged Saarland provisions. But the Court clearly had its eyes on vaster fields. The
justices were convinced that the role of the MP had evolved, and they were prepared to draw
consequences.
As early as 1955, a Second Senate led by Gerhard Leibholz had observed in dicta that pat-
terns of parliamentary pay were gradually shifting. As state after state transitioned ‘from a
liberal-representative to a party state [Parteienstaat] democracy’, parliamentary compen-
sation increasingly resembled a salary meant to remunerate the MP for his labour rather
than an honorarium designed to secure his independence.359 In 1971, the Court noted
that service in Parliament had ‘become a career requiring the full employment of one’s
manpower’, one that entitled a member to compensation adequate to support himself and
his family.360 The Court now drew the full consequences of these observations. From his

354  Peter Conradi, ‘Parlamentarier in privilegienfeindlicher Demokratie. Anmerkungen eines

Bundestagsabgeordneten zum ‘Diäten-Urteil’ des Bundesverfassungsgerichts’ (1976) 8 Zeitschrift für
Parlamentsfragen 113.
355  38 BVerfGE 326 (1975). 356  40 BVerfGE 296 (1975). 357  ibid 309–10. 358 ibid 299.
359  4 BVerfGE 144, 151 (1955). 360  32 BVerfGE 157, 164 (1971).
 Political Justice 163

professorial pension in Göttingen, Leibholz chided the politicians who had long ignored
them. They had little right to complain of the November 1975 judgment; they should have
seen it coming.361
Gone were the days, the Second Senate noted, of the Parliament of notables
[Honoratiorenparlament], where men of independent means consecrated time and talents
to the public weal. Gone too were the days when parliamentary compensation supplemented
an independent profession and salary. The work of an MP had become a ‘full-time job’,362 and
MPs must be compensated accordingly.363 In light of the evolving nature of the parliamentary
mandate, the Senate held, Article 48(3) GG’s guarantee of an ‘independence-securing com-
pensation’ assumed new meaning.364 Members of Parliament—and their families—were
now entitled to a ‘full livelihood [Alimentation] from the state treasury’.365 This conclusion
was dramatic and, strictly speaking, superfluous. The Saarland, after all, already provided
its parliamentarians with full alimentation. But the justices’ target audience was not in
Saarbrücken; it was in Bonn.
There was, as always, a rub. Members of Parliament might be entitled to a life-sustaining
salary, but they were required to treat that salary as taxable income.366 The Basic Law was
‘fundamentally hostile to privilege’, the justices explained.367 This hostility meant that,
except for direct compensation for specified and exceptional parliamentary activities, par-
liamentarians, like other citizens, must pay taxes on their money. It also meant that all
parliamentarians must be treated alike. More concretely, it was unconstitutional for civil
servants, once elected to Parliament, to receive both a parliamentary salary and a civil ser-
vice pension.368
All of this required reform—in the Saarland and, by unmistakable implication, in other
state parliaments and the Bundestag. The Second Senate not only stipulated that parlia-
mentary pay be revalued and its taxation restructured; it instructed parliaments every-
where how these reforms must unfold. The new terms of parliamentary compensation
must not be determined by parliamentary committees behind closed doors. Deliberations
fixing parliamentary pay must unfold ‘before the eyes of the public’.369 The democracy and
Rechtsstaat principles demanded transparency, especially on a subject as sensitive as law-
makers’ setting their own allowance. Here public scrutiny was ‘the only effective control’.
‘Parliamentary democracy is based on popular trust’, and ‘trust without transparence …
is impossible’.370
Walter Seuffert, the Court’s vice president and the Second Senate’s chair, was upset that
his colleagues had reached so many questions neither raised in the complaint nor germane
to its resolution. He filed a lonely dissent.
The public, by contrast, mostly cheered.371 Some parliamentarians grumbled that
the judgment was ‘fantastic’372 and a ‘poor work of political science’.373 Other critics
groused that it was ‘unworldly’374 (weltfremd), and still others that it would be expensive.

361 Gerhard Leibholz, ‘Bemerkungen zum Karlsruher Urteil’ Deutsche Zeitung (14 November 1975).
362 English in the original. 363  40 BVerfGE 296 (n 356) 314. 364 ibid 315. 365 ibid 315.
366 ibid 327. 367 ibid 317. 368 ibid 321. 369 ibid 327. 370 ibid.
371  See Friedrich Karl Fromme, ‘Die Steuerfreiheit der Abgeordneten-Diäten ist verfassungswidrig’ FAZ

(6 November 1975); Hanno Kühnert, ‘Bezüge der Abgeordneten steuerpflichtig’ Süddeutsche Zeitung (6 May
1975)  1; Ernst Müller-Meiningen Jr, ‘Mehr Diätengerechtigkeit’ Süddeutsche Zeitung (6 November 1975)  4;
‘Lehrstück für die Parlamente’ Frankfurter Rundschau (6 November 1975) 3.
372  Peter Conradi in ‘Diäten: Angst vor dem großen Sprung’ Der Spiegel (10 November 1975).
373  Harmut Klatt in ibid. See also ‘Betroffenheit und Verbitterung nach dem Karlsruhe Urteil-Spruch’ FAZ (7

November 1975).
374  Eckart Spoo, ‘Diäten-Urteil “weltfremd”’ Frankfurter Rundschau (27 November 19750 4 (quoting Heinz

Müller, the CDU premier of Lower Saxony).

164 Confrontation, 1971–1982

Parliamentary wages were sure to rise, both to secure the ‘full alimentation’ of all MPs and
to offset the cost of the taxes MPs were now required to pay.375 Parliamentarians would
ensure that what the public treasury extracted as taxes it would return as wages. But the
broader public focused on the fairness of the extraction. The dismay of many parliamen-
tarians only strengthened the public’s sense that the Court was right. Many were pleased,
too, that the judgment abolished the advantages of civil servant MPs. The justices were
credited in some quarters with thwarting the Verbeamtung—the ‘civil servantization’—of
Parliament.376 The Court may have overreached again, but this time many were pleased
with the outcome. Parliament’s long-standing omissions were censured more sharply than
the Court’s corrective overreach.377
But it was still seen as an overreach, especially by purists in the legal academy.
Traditionally, champions of constitutional review have reassured skeptics by stressing
that constitutional courts are not self-activating: they merely decide the cases that come
to them. They are a passive power, wielding neither sword nor purse; an overfed umpire,
calling balls and strikes.378 After the Court’s parliamentary pay judgment, many scholars
argued that this contention must be met with greater skepticism.379 Christian-Friedrich
Menger, a professor in Münster, accused the Court of exercising an unconstitutional
right of judicial ‘self-initiative’.380 More sympathetic scholars like Peter Häberle coun-
tered that this case was exceptional. The Court’s review must never be so searching and
so sweeping—even self-starting—as when the branch of government under review is
establishing its own salary. 381 But even Häberle characterized the judgment as ‘a piece
of Realpolitik’—an instance of the Court’s shaping, and not merely describing, political
realities.382 Hans Schueler, reviewing the decision for Die Zeit, agreed. 383 At the time of
the judgment, Schueler noted, only about 15 per cent of parliamentarians earned no out-
side income. In its description of the modern MP, the Court was not merely observing a
social reality; it was creating one. Henceforth none could ply politics on the side; all must
pursue it as a vocation. The Court had not only interfered in the political process; it had
redefined it.

IV.  Changing of the Guard

Walter Seuffert’s dissenting opinion in the Parliamentary Pay judgment would be his last.
The judgment coincided almost exactly with the decade’s second major shift in the Court’s
membership. Once again, the terms of six of the sixteen justices expired at one blow. Of
these, only the First Senate’s Helmut Simon was reelected. Hans Brox, also of the First
Senate, was eligible for reelection but, overwhelmed by his dual role as constitutional justice

375  See Manfred Schell, ‘Alle Fraktionen wollen jetzt höhere Diäten’ Die Welt (6 November 1975) 2; ‘Karlsruher

Urteil kostet die Steuererzahler viel Geld’ Stuttgarter Zeitung (7 November 1975).

376  Noted in Horst Dietrich, ‘Beamte als Abgeordnete und das Diäten-Urteil des Bundesverfassungsgerichts’

(1976) 27 Zeitschrift für Beamtenrecht 97.

377  See Conradi, ‘Parlamentarier in privilegienfeindlicher Demokratie’ (n 372) 113.
378  Thus the notorious formulation of the American chief justice, John Roberts, at his confirmation hearings

in 2005. See Confirmation Hearing on the Nomination of John G Roberts, Jr to be Chief Justice of the United
States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G Roberts, Jr).
379 See, e.g., Christian-Friedrich Menger, ‘Zur Kontrollbefugnis des Bundesverfassungsgerichts bei

Verfassungsbeschwerden gegen Rechtsnormen—zum Diätenurteil des BVerfG vom 5.11.1975’ (1976) 67

Verwaltungsarchiv 311.
380 ibid 315.
381  See Peter Häberle, ‘Freiheit, Gleichheit und Öffentlichkeit des Abgeordnetenstatus. Zum Diätenurteil des

BVerfG’ (1976) 29 NJW 537, 542–43.

382 ibid 538. 383  Hans Schueler, ‘Zum Berufspolitiker verdonnert’ Die Zeit (14 November 1975).
 Changing of the Guard 165

and professor in Münster, he surrendered the bench for the lectern. Brox had been per-
sonally singled out for criticism on grounds of political and even theological partisanship,
especially in connection with the Abortion decision. He was weary of Karlsruhe’s dubious
spotlight. The other departing justices were Theodor Ritterspach of the First Senate, and
Justices Seuffert, Schlabrendorff, and Rupp of the Second.
After the nearly universal criticism of the politically charged 1971 appointments, and
after the explosive series of judgments that followed, all parties tried to defuse the politi-
cal valence of the 1975 nominations. Both government and opposition promised to favour
juristic competence over political sympathy.384 Externally at least, they succeeded. The
incoming quintet consisted of three judges, two professors, and zero politicians. The Union
parties nominated Engelbert Niebler, a judge in Bavaria, and Helmut Steinberger, a pro-
fessor of public and international law, to the Second Senate; and Dietrich Katzenstein, a
judge in Hamburg, to the First Senate. In addition to reappointing Simon, the SPD nom-
inated Wolfgang Zeidler—who served previously on the First Senate (1967–70), but had
since been president of the Federal Administrative Court—as the Court’s new vice presi-
dent and chairman of the Second Senate. The SPD also nominated Konrad Hesse, a highly
esteemed professor of constitutional law, to the First Senate. Aside from scattered com-
plaints about the Union nominations in the Left Liberal press,385 the appointments enjoyed
broad approval.386
Soon, however, they sparked controversy. Because Zeidler, the new vice president, had
sat on the Court previously, many thought he was barred from reappointment by the 1971
reform law.387 Zeidler had already assumed the reins of the Second Senate when his seven
colleagues were asked to determine his eligibility to join them. The Senate fudged a bit, rul-
ing in the end that, since Zeidler’s previous term predated the 1971 law, he was unaffected by
it. This resolution was workable but not entirely satisfactory. Der Spiegel quipped that every
future complainant could now allege the unlawful composition of the bench. The Zeidler
problem had been replaced by a Karlsruhe problem.388
Zeidler’s elevation to the vice presidency also incensed one of his colleagues. Four years
earlier, Martin Hirsch had left the Bundestag with the understanding that after four years
he would replace Seuffert as the Court’s vice president. When the SPD leadership opted
for Zeidler instead, Hirsch was livid. He fired off a stormy stream of angry missives to the
party’s biggest wigs. The tenor of these letters makes clear that Hirsch’s party loyalties had
never slackened. Hirsch protested that his loyal service to the party as a judge entitled him

384 See ‘Diesmal besser’? FAZ (16 August 1975); ‘Neue Richter für Karlsruhe’ Frankfurter Rundschau

(3 September 1975) 1; Volkmar Hoffmann, ‘Gesucht wurde juristische Spitzenqualität’ Frankfurter Rundschau
(5 September 1975) 1.
385  Volkmar Hoffmann, ‘Verwunderung über die Richter-Kandidaten der CDU/CSU’ Frankfurter Rundschau

(6 September 1975) 1; Robert Leicht, ‘Schwache Vorschläge für Karlsruhe’ Süddeutsche Zeitung (10 September
1975) 4; Hellmuth Rieber, ‘Vorschläge der Union für Richter kritisiert’ Saarbrücker Zeitung (18 September 1975).
386  Enno von Loewenstern, ‘Erleichterung in Karlsruhe über die neuen Kollegen’ Die Welt (6 September

1975)  3; Friedrich Karl Fromme, ‘Jetzt sind alle Verfassungsrichterkandidaten bennant’ FAZ (6 September
1975) 2; ‘Gute Wahl’ Rheinischer Merkur (19 September 1975) 4; ‘Annehmbar’ FAZ (20 September 1975).
387  On the Zeidler controversy, see Claus Donath, ‘Darf der neue Vizepräsident vereidigt werden oder nicht’?

Stuttgarter Zeitung (21 October 1975) 3; Hanno Kühnert, ‘Zweifel wegen Verfassungsrichterwahl’ Süddeutsche
Zeitung (21 October 1975); ‘Magenschmerzen nach Richterwahl’ Süddeutsche Zeitung (21 October 1975); ‘Der
Streit um den Vizepräsidenten’ FAZ (22 October 1975); ‘Karlsruhe in Verlegenheit’ Der Spiegel (10 November
1975) 22; Hanno Kühnert, ‘Karlsruhe prüft Bestellung Zeidlers’ Süddeutsche Zeitung (10 November 1975) 6;
‘Blinde Stellen’ Der Spiegel (17 November 1975)  54; ‘Fragen zur Rechtmäβigkeit der Wahl Zeidlers’ FAZ
(27 November 1975); Hanno Kühnert, ‘Entscheidung über Zeidler am Mittwoch’ Süddeutsche Zeitung (29
November 1975) 8; Friedrich Karl Fromme, ‘Wolfgang Zeidler. Präsidiale Karriere’ FAZ (2 December 1975) 10;
‘Im Zweifel zum Verfassungsgericht’ FAZ (3 December 1975).
388  See ‘Blinde Stellen’ Der Spiegel (17 November 1975) 54.
166 Confrontation, 1971–1982

to the promised advancement. ‘What reservations are there against me’? he asked Friedrich
Schäfer, vice-chairman of the SPD Bundestag faction. ‘What is there to complain about in
my work here [with the Court]? … What has [Zeidler] ever done for the SPD and its legal
politics’?389 Hirsch provided a list of the cases in which he had served as rapporteur, and
invited Schäfer to study them and see how much Hirsch had contributed to SPD interests.390
In a pair of long letters to Willy Brandt (which he copied to several others) Hirsch com-
plained that it was ‘shabby and deplorable’ of the party to break its promise.391 It was also
foolish. One need only compare Hirsch’s performance on the Constitutional Court with
Zeidler’s, as well as Hirsch’s achievements in Parliament with Zeidler’s as an administrative
judge to see that Hirsh was the better man for the party. ‘I have a right, then’, Hirsch wrote,
‘to ask what exactly it is that justifies his being preferred over me?’392 The choice of Zeidler
would hurt the Republic and the SPD.393
The other 1975 nominations to the Court, Hirsch added, were even more regrettable.
The SPD had ‘squandered the long-awaited chance to set off against Professor Geiger an
outstanding scholar of our colour—namely the comrade Professor Böckenförde—without
any prospect of correcting this in the foreseeable future’.394 Toward the end of his long and
passionate letter to Brandt, Hirsch seemed to realize that he may have gone a bit far. He
clarified that it shouldn’t be assumed that constitutional judges will always vote for the
party that nominates them. ‘But a constitutional court’, Hirsch continued, ‘more than any
other court, is a political court, and constitutional questions cannot be judged unpoliti-
cally’. Political convictions played a role in the Court, and rightly so. ‘Among us’, Hirsch
concluded, ‘entirely unpolitical individuals would be truly out of place’.395
Had these letters been made public, they would surely have fanned and confirmed wide-
spread suspicion that the justices—particularly the newer ones—were swayed by party loy-
alties. During the mid- to late-1970s, the public’s esteem for the Court sank.396 Perceptions
that the Court was overreaching were aggravated by perceptions that it was doing so for
partisan reasons. The emergence of signed dissents accentuated the impression of partisan-
ship. The putative 5:3 CDU/CSU majority in the First Senate had been on egregious dis-
play, many thought, in the University and Abortion judgments. The Court had established
its reputation in the 1950s by defying partisan predictions during the European Defence
Community crisis. In the 1970s, the Court risked squandering that reputation by confirm-
ing partisan predictions when the political stakes were highest.
This was doubly dangerous to the Court’s legitimacy precisely because the Court had
done so much to enhance the centrality of political parties in the postwar state. Part of
the democratic defence of the Court was that, in a party state in which popular politi-
cal participation is mediated by powerful political parties, the Court could reinforce the
people’s fundamental commitments by constraining overwheening parties. This was an
ironic defence, to be sure: the people needed the Court’s protection against the parties only
because the Court had made the parties so important. But the defence broke down entirely

389  Martin Hirsch to Friedrich Schäfer, 9 June 1975, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Martin

Hirsch, 1/MHAC000137).
390 ibid.
391  Martin Hirsch to Willy Brandt, 4 November 1975, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Martin

Hirsch, 1/MHAC000137); see also Martin Hirsch to Willy Brandt, 5 September 1975, Friedrich-Ebert-Stiftung
(Bonn) (Nachlass Martin Hirsch, 1/MHAC000137).
392  Martin Hirsch to Willy Brandt, 4 November 1975, Friedrich-Ebert-Stiftung (Bonn) (Nachlass Martin

Hirsch, 1/MHAC000137).
393 ibid. 394  ibid. Böckenförde would ultimately join the Court in 1983. 395 ibid.
396  See Hans Vorlӓnder and Gary S Schall, ‘Integration durch Institutionenvertrauen’ in Hans Vorlӓnder (ed),

Integration durch Verfassung (Westdeuter Verlag 2002) 343, 364.

 Crisis 167

when it seemed that the justices themselves were in the thrall of the parties whose powers
the Court had expanded. It was the parties and their judicial selection potentates, after all,
to whom the justices owed their jobs. The Court would survive the crisis of the 1970s and
restore its reputation only when it reasserted its independence from the dominant political
parties.
With the departure of Theo Ritterspach und Hans Rupp only one of the Court’s founding
justices, Willi Geiger, remained. Geiger himself would reach the age limit of sixty-eight in
May 1977 and would leave the Court later that year. After the 1975 appointments, ten of the
Court’s sixteen judges had been appointed during the 1970s. The changing of the guard was
quite thorough.
As noted earlier, some saw in these shifts a story of decline. A Court, the narrative ran,
once populated by judicial giants unafraid to vindicate the rights of the downtrodden or
to quash the best-laid plans of overbearing chancellors had degenerated into a hyperpar-
tisan tribunal with supralegislative pretensions.397 Some first-generation justices shared
the nostalgia reflected in this narrative, even if they didn’t adopt its jeremiad tone. Erwin
Stein confessed to Gebhard Müller that it was a ‘bitter experience’ to see how little his
legacy was acknowledged in Karlsruhe. ‘One counts as dead there’, Stein wrote.398 After
the Parliamentary Pay judgment, Ernst Friesenhahn told Gerhard Leibholz of his inten-
tion to publish his criticisms of the judgment, provided he could muster the ‘necessary
concentration’.399 It was distasteful, though, to reprove a Court that continued to drift
astray. ‘The Court makes so many questionable judgments’, Friesenhahn lamented in
another letter, ‘and it has clearly lost much respect’.400
But fairness to the current justices, Friesenhahn conceded, the Court’s work was harder
now. When Leibholz and Friesenhahn together sat on the Second Senate, ‘the times were
not so difficult as they are today. We could essentially build … on that which had been
worked out in the public law scholarship of the Weimar era’. Now the Court’s work had
shifted to ‘other shores’. The subject matter of the current cases was sometimes ‘so com-
plicated that the law pushes the boundaries of what may be regulated’. It was no wonder
that the justices’ reasoning often seemed ‘ill construed’ and lacking in ‘seminal principles
for the future’.401 Willi Geiger also reminisced with Friesenhahn about their earlier time
together. ‘Those were the days!’ wrote Geiger on Friesenhahn’s seventieth birthday. Ernst
Benda qouted this letter on the occasion of Geiger’s retirement, adding wistfully, ‘Those
were the days, indeed!’402

V.╇Crisis
A.╇Public funds for parties’ public relations work
Nineteen seventy-five was a climactic year for the Court, the culmination of a three-year
swirl in the thick of a political tempest. The following year brought a merciful respite. The
Court decided no political causes célèbres in 1976—the year of its silver jubilee—and the

397╇ See ‘Weltrekord in Wartezeiten’ Der Spiegel (1 December 1975).

398╇ Erwin Stein to Gebhard Müller, 10 August 1972, Landesarchiv Baden-Württemberg (Stuttgart) (Nachlass
Müller, Q 1135 Bü 705).
399╇ Ernst Friesenhahn to Gerhard Leibholz, 14 November 1975, BAK N 1334/5 (Nachlass Leibholz).
400╇ Ernst Friesenhahn to Gerhard Leibholz, 31 December 1974, BAK N 1334/6 (Nachlass Leibholz).
401╇ Ernst Friesenhahn to Gerhard Leibholz, January 1977, BAK N 1334/29 (Nachlass Leibholz).
402╇ Ernst Benda, ‘Ansprache anläβlich der Feierstunde des Bundesverfassungsgerichts am 9. November 1977

zur Verabschiedung von Bundesverfassungsrichter Prof. Dr. Willi Geiger’, BAK N 1334/299 (Nachlass Leibholz).
168 Confrontation, 1971–1982

public’s attention was largely absorbed by another federal election. It was the first general
election since Brandt’s resignation two years earlier—the first electoral test of Helmut
Schmidt.
The mood was very different from 1972. As noted, the enthusiasm of the early Brandt
years was gone. Under Schmidt’s watch, debt had soared and unemployment risen. In
nearly every state election since 1974, the CDU/CSU fortunes had improved. The trend con-
tinued in the federal elections of 1976. Under a ticket headed by Rhineland-Pfalz minister
president Helmut Kohl, the CDU/CSU share of the vote rose by 3.7 per cent to 48.6 per cent,
the Union parties’ best tally since winning an absolute majority in 1957 and a slightly larger
portion of the vote than that with which the SPD and FDP took power in 1969. Both coali-
tion parties lost votes; the SPD share shrank by 3.2 per cent to 42.6 per cent, the FDP by half
a percentage point to 7.9 per cent. Still, the combined SPD–FDP vote was enough to keep the
coalition in power and to keep Schmidt (who was more popular than his party) in office. But
it was a close-run thing. Cracks in the coalition had begun to appear.
During the campaign the government’s public relations department conducted a mas-
sive publicity offensive, trumpeting the coalition’s achievements and campaigning for its
reelection. From early May until the election in October the government conducted an
immense advertising campaign—at the cost of some 10 million DM—in a host of major
newspapers. Glossy, large-format inserts summarized advances and reforms and closed
with anodyne slogans: ‘The balance is clear: We’re on the right path’; ‘Accomplishment
merits trust’; ‘We secure the future’ etc. Between 24 May 1976 and 26 July 1976, a three- to
five-page government insert appeared in each week’s edition of Der Spiegel. Each insert
featured snappy synopses of the government’s successes and tart dismissals of the oppo-
sition’s pessimism. ‘All in all’, ran one headline, ‘this government has brought you more
freedom’. In addition, the PR office issued a torrent of pamphlets and posters, books and
brochures—sometimes in runs of over a million copies.
What effect all of this had on the election is impossible to ascertain. Employing PR
resources in the attempt to remain in office was an established practice, beginning early
in the Adenauer era. But this time the Union parties, now in opposition, cried foul. On
23 July 1976, in the middle of the campaign and of the official PR drive, the CDU filed
a constitutional complaint, alleging that the use of public funds to promote the electoral
prospects of the sitting government gave incumbents an unfair advantage—in violation of
Article 21 GG’s guarantee of equal opportunity for all parties and Article 20 GG’s enshrine-
ment of the democracy principle. The Court held oral arguments on 9 September, less than
a month before the election. The Second Senate published its decision the following March,
five months after the election had passed.
The result was not a happy one for the newest Schmidt government. The Senate majority
held that the government’s PR activities during the campaign violated both the democracy
principle and the principle of equal opportunity for political parties.403 As early as the 1966
Party Finance judgment, the Court had stressed that the formation of popular will must be
‘State free’.404 In more recent decisions, the Court had reaffirmed this precept,405 empha-
sized that the state mustn’t favour one party over others,406 and extended the principle of
equal voting rights from the election itself to the campaign.407 The Second Senate now com-
bined these principles into a general ban on official engagement in the electoral process.408
Sitting governments must not employ state resources to preserve power. Public relations

403  44 BVerfGE 125 (1977). 404  20 BVerfGE 56, 100 (1966). 405  37 BVerfGE 84 (1974).
406  34 BVerfGE 160 (1972). 407  41 BVerfGE 399 (1976). 408  44 BVerfGE 125, 144 (1977).
 Crisis 169

work (Öffentlichkeitsarbeit)—distinct, in German, from propaganda, though in English

usually a euphemism for it—had a legitimate and even constitutionally-mandated role. But
legitimate public relations ended where electioneering began.409 A government that crossed
this line offended the constitution.
The line, admittedly, was hard to draw. As an abstract matter, it could hardly be drawn
at all. Questionable practices must be evaluated individually, but the Court did outline
some general principles to guide that assessment. Government publications should nei-
ther endorse the parties in power nor attack those in opposition.410 They should neither
express the government’s desire to remain in office nor foster the public’s desire to keep
them there. Their tone and content should be informative rather than celebratory; their
format and appearance should resemble a report rather than an advertisement. Otherwise
innocuous publications might become suspect if their cost or quantity were too great, their
proximity to an election too close, or precautions against their use as election propaganda
too meagre.411 Extreme care must be taken in applying these standards. A finding of con-
stitutional violation, the Senate explained, required multiple obvious infringements—as
in the present case.412
On this point the Senate’s analysis was scrupulously factual. For a dozen pages, the jus-
tices scrutinized the government materials produced during the campaign—noting, for
instance, that a pamphlet on foreign policy featured fourteen photographs of the foreign
minister, Hans-Dietrich Genscher.413 The Senate cited instances of manifest sloganeering
from a wide range of publications. Peter Häberle praised this aspect of the decision, laud-
ing the Court’s ‘rigorous and exemplary legwork with the facts’.414 The conclusion that
the coalition had crossed the line was inescapable. The justices strained the thesaurus in
stressing just how palpable the offences were, describing the partisan purpose of various
publications as ‘evident’,415 ‘obvious’,416 ‘unmistakable’,417 ‘unambiguous’,418 ‘clear’ etc.419
(‘Do not imagine’, warned Boswell’s first editor, ‘that the only defect of style, is repetition
of words’.)420
Though the majority thought the outcome obvious, three justices—one nominee from
each of the major parties—joined separate opinions, though only one dissented substan-
tially from the majority’s response to the constitutional question. Willi Geiger, joined by
Martin Hirsch, criticized the majority’s methodology and underscored the misuse of tax
funds as the essence of the constitutional offence. Geiger and Hirsch stressed also that it
was equally illegitimate for opposition parties to receive campaign assistance from the
state governments they controlled. Justice Rottmann, by contrast, dissented in earnest.
Rottmann thought the government had not violated the democracy principle at all and had
only lightly infringed the principle of equal opportunity for political parties. The majority,
in Rottmann’s view, had misconstrued the party structure of the West German state and
confused the constitutional issue as a result.421 The government’s duty, Rottmann argued,
was to implement the programme of the majority parties. This required public relations

409 ibid 150. 410 ibid. 411 ibid. 412 ibid 156. 413 ibid 161.

414  Peter Häberle, ‘Öffentlichkeitsarbeit der Regierung zwischen Parteien- und Bürgerdemokratie’ (1977) 32
JuristenZeitung 361, 362 fn 9.
415  44 BVerfGE 125 (n 408) 161. 416 ibid 157. 417  ibid 160, 162.
418  ibid 159, 160, 162, 163.
419  ibid 157, 159. See Andreas Peilert, ‘Öffentlichkeitsarbeit. Öffentlichkeitsarbeit der Bundesregierung als

Verletzung des Demokratieprinzips und der Chancengleichheit im Wahlkampf’ in Verfassungsrechtsprechung,

(n 153) 269.
420  Edmund Malone, in Adam Sisman, Boswell’s Presumptuous Task: The Making of ‘The Life of Dr. Johnson’,

Farrar, Straus and Giroux 1999) 244.

421  44 BVerfGE (n 408) 190.
170 Confrontation, 1971–1982

work, even at election time.422 The particular use of PR made by the Social–Liberal govern-
ment in 1976 may have been in questionable political taste; but the Court was not an arbiter
of political taste.423
Rottmann’s dissent found some scholarly but few popular echoes. The press, for the most
part, hailed the decision warmly.424 Die Welt called it a ‘redemptive judgment’.425 Die Zeit
reported that ‘only a few decisions of the Federal Constitutional Court could give citizens
and voters such unbounded pleasure as its most recent verdict on the self-promotion of
the federal government at the last Bundestag election’.426 The Bayernkurier burbled that
the judgment was ‘an historic landmark in the development of this Republic’.427 Robert
Leicht in the Süddeutsche Zeitung predicted ‘beneficent effects’.428 Even Der Spiegel, which
asked impishly whether the judgment would bar cabinet members from travelling to cam-
paign rallies in government planes and cars, called the result ‘long overdue’.429 Academic
commentary was divided, but some scholarly praise was panegyric. Peter Häberle called
the decision a ‘milestone in the history of German parliamentarism’.430 Karl-Heinz Seifert
classed it ‘among the great, direction-setting decisions for the state life of the Federal
Republic’.431
This enthusiasm for the Public Relations judgment is instructive. The judgment’s admir-
ers saw the decision, not as an anti-democratic rebuke to duly elected officials, but as a
democracy-reinforcing restraint on the parties in power. Peter Häberle tellingly entitled
his review essay, ‘Government Public Relations between Party- and Citizen-Democracy’.432
In the hotly criticized judgments of recent years, the Court had seemed to split on partisan
lines for partisan reasons. The justices were perceived as instruments of the parties they had
made so powerful. Together with the Geiger-Hirsch concurrence, the Public Relations judg-
ment admonished all parties against employing the resources of the state toward partisan
ends. This delighted a citizenry whose democratic engagement was mediated by seemingly
all-powerful parties. Like earlier landmarks, such as the Television judgment, the Public
Relations decision distinguished the state from the party that held its reigns. The judgment
articulated long-term principles that implicitly reproved past governments and clearly
warned future ones. To many observers, it was the Constitutional Court at its finest.
The government tried hard to take the decision in stride. Klaus Bölling, a spokesman,
announced that the government would ‘obviously respect’ the decision. But he stressed
that the condemned practices, as the Court itself noted, had been common to both parties,
at the state and federal level, for a long time. The judgment was no occasion for ‘fanfares of

422 ibid 184. 423 ibid 192.
424  See Knut Teske, ‘Bonner Regierung hat Steuergelder für Wahlhilfe miβbraucht’ Die Welt (3 March 1977) 1;
‘Wahlbewerbung mit Haushaltsmitteln verboten:  Die Bundesregierung verliert in Karlsruhe’ FAZ (3 March
1977) 1; Robert Leicht, ‘Allen Parteien ins Stammbuch’ Süddeutsche Zeitung (3 March 1977); Hans Peter Schütz,
‘Erdbeben’ Stuttgarter Nachrichten (3 March 1977)  1; ‘Auf Staatskosten’ Bonner General-Anzeiger (3 March
1977) 1; ‘Nicht mehr mit Dienstwagen in den Wahlkampf’? Der Spiegel (7 March 1977) 16. Papers close to the
government were critical. See Hans Schueler, ‘Votum für ein Ideal’ Die Zeit (18 March 1977) 5; ‘Leitbilder aus
Karlsruhe’ Frankfurter Rundschau (3 March 1977) 3.
425  Die Welt (3 March 1977) 6.
426  Hans Schueler, ‘Votum für ein Ideal’ Die Zeit (18 March 1977) 5.
427  In ‘Wupp und Weg’ Der Spiegel (28 March 1977).
428  Robert Leicht, ‘Allen Parteien ins Stammbuch’ Süddeutsche Zeitung (3 March 1977).
429  ‘Nicht mehr mit Dienstwagen in den Wahlkampf’? Der Spiegel (7 March 1977).
430  Häberle, ‘Öffentlichkeitsarbeit der Regierung’ (n 414) 361.
431  Karl-Heinz Seifert, ‘Anmerkung’ (1977) 30 Die Öffentliche Verwaltung 288. Critical reactions included

Otto Ernst Kempen, ‘Zwischen Gemeinwohlpostulat und demokratischen Verfahrensgarantien. Das Urteil des
Bundesverfassungsgerichts zur regierungsamtlichen Öffentlichkeitsarbeit’ (1979) 18 Der Staat 81; and Rüdiger
Zuck, ‘Anmerkung’ (1977) 31 NJW 1054.
432  Häberle, ‘Öffentlichkeitsarbeit der Regierung’ (n 414).
 Crisis 171

self-righteousness’.433 But the opposition crowed all the same. Blessed with a fertile imagi-
nation or a short memory, Helmut Kohl chortled over ‘the sharpest slap in the face ever
received by a federal government from the Constitutional Court’.434 The sharpest slap ever
it certainly was not. But it did sting. In the public’s eyes, the Public Relations judgment,
together with the Parliamentary Pay decision, had gone some way toward mitigating the
obloquy incurred by the Abortion decision. For the federal government, however, and for
the chancellor who led that government, it was a further offence—a resumption and escala-
tion of a preexisting conflict.
The judgment not only diminished the coalition’s resources for future elections; it dented
the legitimacy of its recent victory. The cabinet chafed at this additional impertinence. It
chafed again, three months later, when the Second Senate ruled that in December 1973 the
coalition’s former finance minister, by approving expenditures of around 2 million DM out-
side of the approved budget, had violated the Bundestag’s right (under Article 110(1) GG) to
control the budget.435 The offending former minister was now federal chancellor—Helmut
Schmidt himself. Again the government protested that Schmidt’s actions had followed
standard government practice ‘since 1949’. Again the opposition gloated. Helmut Kohl
called the judgment a ‘victory’ for the CDU/CSU and a shield against the ‘autocratic man-
ner of a Helmut Schmidt’ in disposing of taxpayers’ cash.436 Fritz Zimmermann, a leading
CSU member of the Bundestag, opined that the judgment affected Schmidt not just as a
former minister, ‘but personally as well’.437 Schmidt himself kept quiet. But his patience
with Karlsruhe was running thin. Within twelve months, the Court quashed yet another
Social–Liberal reform. By so doing, the Court pushed the conflict to crisis point.

B. The ‘German autumn’ and the constitutional dilemmas

of domestic terrorism
On 21 June 1977, the First Senate ruled that criminal sentences of life imprisonment without
the possibility of parole were unconstitutional—a violation of human dignity.438 Only a few
months preceding this judgment there was a hailstorm of calls to restore the death penalty
itself.439
Those cries were provoked by an unprecedented sequence of terrorist atrocities. Nineteen
seventy-seven was the annus horribilis of the Federal Republic, the year in which the state’s
confrontation with domestic terrorism reached a dramatic and deadly climax. What later
became known as the ‘German autumn’ began shortly after midsummer with the murder,
following a botched kidnapping attempt, of Jürgen Ponto, head of the Dresdner Bank. On

433  In Knut Teske, ‘Bonner Regierung hat Steuergelder für Wahlhilfe miβbraucht’ Die Welt (3 March 1977) 2.
434  In ‘Wupp und Weg’ Der Spiegel (28 March 1977). 435  45 BVerfGE 1 (1977).
436  In ‘Die Opposition gewinnt in Karlsruhe. Das Haushaltsrecht des Parlaments gestärkt’ FAZ (26 May

1977) 1.
437 ibid. 438  45 BVerfGE 187 (1977).
439  See reports in ‘Bayerns Innenminister bringt Todesstrafe ins Gespräch’ FAZ (13 September 1977) 2; Otto

Paulsen, ‘Todesstrafe befristet einführen (Leserbrief)’ FAZ (14 September 1977)  9; ‘Eine Ersatzdiskussion’
FAZ (14 September 1977) 2; ‘Der Präsident des Bundesrates warnt vor einer Debatte über die Todesstrafe’ FAZ
(14 September 1977) 2; ‘Der Bürger ruft nach härteren Strafen’ Der Spiegel (19 September 1977); ‘Todesstrafe?
Der Staat geht in Stellung’ Der Spiegel (19 September 1977); Worte der Woche, Die Zeit (23 September 1977);
‘Katalog von CSU-Forderungen gegen den Terrorismus’ FAZ (24 September 1977)  2; ‘Ein Planquadrat in
Verteidigungsstellung’ Die Zeit (30 September 1977); ‘Hassel für Todesstrafe’ FAZ (3 October 1977) 4; ‘Eine
Umfrage unter Schülern’ FAZ (18 October 1977)  2; ‘Dunkle Geschichte hinter dem Fenstern’ Der Spiegel
(24 October 1977); ‘Etwas Anbieten’ Der Spiegel (24 October 1977); ‘Seit der Ermordung Schleyers hat sich das
Bild der Deutschen im Ausland geändert’ FAZ (26 November 1977) 4; ‘Die Terroristen verraten unsere Ideale’
Der Spiegel (28 November 1977); ‘Schatten über dem Rhein’ Die Zeit (23 December 1977).
172 Confrontation, 1971–1982

5 September, a Red Army Faction ‘commando unit’ abducted the industrialist Hans-Martin
Schleyer, then president of the German Employers’ Association, in Cologne. Schleyer’s cap-
tors styled themselves ‘second generation’ RAF militants. They demanded the release, on
pain of their hostage’s life, of ten members of the ‘first generation’—the core band of the
Baader-Meinhof-Complex—then detained in Stammheim Prison. They also demanded a
ransom of fifteen million US dollars. Two-and-a-half years earlier, when members of the
June 2nd Movement kidnapped Peter Lorenz, the authorities acceded to terrorist demands
for the release of imprisoned group members in exchange for Lorenz’s freedom. The released
militants were deported to South Yemen. Some, however, returned to the Federal Republic
and committed further crimes. One of them, Rolf Heiβler, helped capture Hans-Martin
Schleyer. Heiβler and his accessories expected a repetition of the Lorenz exchange, but
were quickly disappointed. This time the federal government, led by Helmut Schmidt and
Hans-Jochen Vogel, refused to negotiate. The government was resolved, this time around,
to hold firm.
The terrorists reacted with additional pressure, applied with the assistance of Palestinian
accomplices. On 13 October, a Lufthansa jet returning to Frankfurt from Mallorca was
hijacked by belligerents of the Popular Front for the Liberation of Palestine (PFLP). The
hijackers ‘executed’ the plane’s captain and conducted it on a rambling odyssey over the
Arabian Peninsula. They demanded that the West German government yield to RAF
demands and, additionally, release two Palestinian compatriots then held in Turkey.
Otherwise, the plane’s eighty-six passengers, most of them German holidaymakers, would
die. Schleyer’s captors forced him to call on the Schmidt government to relent, but the gov-
ernment refused to yield. It was clear that Schleyer’s life hung by a fraying thread. Hans
Eberhard Schleyer, the hostage’s son, contacted Vogel and offered to supply the ransom
money, but a media leak scuttled the plan. Schleyer’s son saw only one further chance to
save his father’s life. At 1 p.m. on Saturday, 15 October, he asked the Constitutional Court
to order the Schmidt government to accede to the terrorists’ demands. In support of this
petition, the younger Schleyer invoked the state’s affirmative duty to protect human life.
The Court, often criticized for its slow procedures, responded with lightning celerity.
The First Senate convened oral arguments around 9:30 p.m. that very evening and con-
cluded them around midnight. At 5:45 a.m. the following Sunday morning, the chief justice
announced that the Court had rejected the petition.440 Yes, the Senate agreed, the state
must protect human life; but it may choose for itself how to do so. That duty, moreover,
extended to all human life—to citizens safe at home as well as captives held hostage. Under
circumstances the Court described as sui generis, judicial interference in the excruciating
balance between saving hostages now and protecting other citizens in future was especially
inappropriate. What’s more, a constitutional imperative to surrender to terrorist blackmail
would make the state’s reaction to terrorists ‘calculable’, and ‘the state’s protection of its
citizens impossible’.441
It was the most immediately weighty decision the Court had ever issued. The justices knew
that it meant an innocent man would die, and for this reason the decision has sometimes
been called, with more sympathy than resentment, a ‘death sentence’ (Todesurteil).442 On
18 October, three of the imprisoned RAF members—including Andreas Baader—committed
suicide and were found dead in their cells. In retaliation for what terrorist mythology would
call the ‘murder’ of their comrades, Schleyer’s captors shot him in the neck. One of the

440 
46 BVerfGE 160 (1977). 441 ibid 165.
442  SeeMaximilian Steinbeis, Marion Detjen, and Stephan Detjen, Die Deutschen und das Grundgesetz.
Geschichte und Grenzen unserer Verfassung (Pantheon 2008) 178–80.
 Crisis 173

weapons was fired by Rolf Heiβler. Schleyer’s body was found in the trunk of an aban-
doned green Audi the next day. Also on 18 October, the Lufthansa plane finally landed—in
Mogadishu, Somalia where, with the permission of the Somali government, a West German
task force assaulted it. All eighty-six passengers were rescued; only one of the hijackers
survived. In weeks to come, mourners from all segments of society wrote to offer their con-
dolences to Schleyer’s widow, Waltrude. Two of the most poignant letters came from Ernst
Benda and Hans-Jochen Vogel.443
The West German public rallied to the support and rang with the praise of its steel-nerved
chancellor. It added words of appreciation for the Court that sustained Schmidt with its
constitutional imprimatur.444 Press and professoriate agreed that the Court’s decision was
correct and, all things considered, inevitable. Many were relieved by the Court’s exercise
of deference and restraint in such an emotionally and politically explosive matter. And yet,
when the terrorist crisis was over and its attendant anxieties abated, some reflected uneasily
on the stupendous powers of a Court whose jurisdiction could reach such a matter at all. ‘In
the Schleyer example’, wrote Hans Schueler in Die Zeit, ‘as in hardly any other, is revealed
the power … of a nearly all-competent Constitutional Court’.445 Schueler’s essay, whose
title scored the justices as ‘The Counter-Captains of Karlsruhe’, went on to ask, as other
critics would ask in the turbulent months that followed, whether ‘Bonn’ was ‘ruled by con-
stitutional judges’. The Court, Schueler said, had become ‘a political tribunal par excellence,
nearly a parallel government, dressed—or merely disguised?—in judicial robes’.446

C.╇Karlsruhe besieged
Within a few months, Schueler’s barbs were echoed by other pens and voices in the most
sustained public assault the Court had ever faced. The immediate trigger was a judg-
ment, delivered on 13 April 1978, striking down the coalition’s reform of compulsory
military service.447 Previously, an applicant seeking excusal from military service on
grounds of conscience had to undergo an oral examination to test the good faith of his
claim. Under the reform law, conscientious objectors needed only to submit a written
statement of their objections—needed only, critics grumbled, to send a postcard—after
which they could be appointed for alternative service. The law was known as the
‘Alternative Service Law’ or, less reverently, the ‘Postcard Law’. Its practical effect was
to confer a right of choice between military service and civilian alternatives. The CDU/
CSU parliamentary faction, as well as the Christian Democrat governments of Bavaria,
Baden-Württemburg, and Rheinland-Pfalz, challenged the law’s constitutionality on
both procedural grounds (it was promulgated without Bundesrat approval) and substan-
tive grounds (it violated the equality clause).
The Second Senate sustained the complaint on both counts and annulled the law in its
entirety. Universal military service, the Senate explained, was an expression of egalitar-
ian thinking with honourable roots in a ‘free-democratic tradition’ that reached back
to the French Revolution of 1789 and the Prussian reforms of the early nineteenth cen-
tury.448 Its application in the Federal Republic was governed by the general equality clause

443╇See Heinrich Basilius Streithofen (ed), Briefe an die Familie Schleyer. Bekenntnis und Verpflichtung

(Seewald 1978) 166–67.

444╇ See, e.g., Enno von Loewenstern, ‘Die Mahnung aus Karlsruhe’ Die Welt (17 October 1977) 6; ‘Die Last

bleibt’ FAZ (17 October 1977) 1.

445╇ Hans Schueler, ‘Die Konterkapitäne von Karlsruhe’ Die Zeit (24 February 1978). 446╇ibid.
447╇ 48 BVerfGE 127 (1978). 448╇ibid 161.
174 Confrontation, 1971–1982

of Article 3 GG. From that clause the Senate derived the principle of ‘military justice’
(Wehrgerechtigkeit).449 That principle required more than a blanket option between mili-
tary service and a civil substitute. It required, in principle, that all who owed military ser-
vice should supply it and that only those be excused who, for reasons of conscience, were
genuinely opposed to taking up arms.450 The responsible authorities must be able with some
certainty to assess the authenticity of applicants’ claims.451 The constitution forbade grant-
ing a right to reject military service. But this, in effect is what the new law did.452 The previ-
ous system for assessing claims was problematic, to be sure; but the reform system didn’t
assess claims at all.453
Worse still, the new regime placed heavier burdens on those who accepted mili-
tary service than on those who opted out. The number of conscientious-objectors
had increased twentyfold in twenty years and was wildly outstripping the number
of available positions in the alternative service. Current trends portended a perverse
dynamic: Those willing to serve in the military were increasingly likely to be called
into service; those opting for a civilian alternative were were increasingly unlikely to
have to supply it.454
The inequity was constitutionally intolerable. Parliamentary plans to increase the num-
ber of civil replacement slots by 1980 could not save the law. In its current incarnation, the
law was unconstitutional. Because the offending provisions were central to the law as a
whole, the entire law was null and void.455 For good measure, the justices also held that some
of the law’s provisions required Bundesrat approval, and its passage without that approval
was also unconstitutional.456 The Senate’s vote on the substantive question passed 7:1; on
the procedural question, 6:2. On the first question, only Martin Hirsch, the quarrelsome
former SPD parliamentarian, dissented.
Popular dissent, particularly among the young, was clamorous. The judgment sent young
Social Liberals and conscientious-objection interest groups into the street. In a host of uni-
versity cities, demonstrators marched and publicly burned their military service records.457
The Young Socialists (JuSos) pilloried the Court as the ‘Executive Arm of the CDU/CSU’—a
‘fifth column of [the Union’s] conservative-reactionary politics’ best rechristened the ‘Basic
Rights Encroachment Court’.458 The Young Democrats called for a ‘demythologization of
the Karlsruhe council of the gods’ and branded the judgment a ‘constitutional violation
legalized at the highest level’.459 As usual, leading SPD/FDP politicians were more restrained
than the firebrands in the street. Those personally involved in crafting the law criticized the
judgment only modestly.460 Hans Apel, the SPD minister of defence, even spared it a good
word.461
As the weeks passed, however, six years of Social Democrat frustration with the Karlsruhe
Court began to bubble over. More and more SPD leaders took the Court to task for over-
stepping its bounds. In his dissenting opinion in the Conscientious Objection case, Martin
Hirsch warned the majority against the dangerous transition from Hüter to Herr—from
Guardian to Master—of the constitution. The formulation found a wide popular echo. It
became an accusation rather than a warning.

449 ibid 159. 450 ibid 166. 451 ibid. 452  ibid 168–69. 453  ibid 167–68.

454  ibid 171–75. 455 ibid 176. 456  ibid 177–84.
457  Die Welt (15 April 1978) 2; (14 April 1978) 5.
458  See Jungsozialisten in der SPD, Unterbezirk Münster, ‘Stellungnahme zum Urteil des BVerfG zur Novelle

des Wehrdienstgesetzes vom 13. April 1978’, BAK B 189/24717 (Wehrpflichtnovelle).

459 In Die Welt (14 April 1978).
460  FAZ (14 April 1978) 2; Die Welt (14 April 1978) 5; Die Welt (24 April 1978) 2.
461  FAZ (14 April 1978) 2.
 Crisis 175

The charge was given its sharpest formulation by Holger Börner, minister president of
Hesse. Bӧrner’s predecessor, Georg August Zinn, had been one of the Court’s staunchest
public defenders. Börner became its loudest foe. In a 21 May 1978 speech at an SPD conven-
tion on legal politics, Börner hurled down the gauntlet:
We have here a matter of most serious concern: Does the Constitutional Court actually content
itself with the role of a ‘Guardian of the Constitution’ or does it increasingly also step forward
with legal-political directives … as ‘Lord of the Constitution’ and ‘Ruler of the Constituted’? ….
With mounting frequency in its opinions, the Court dictates for the legislature a binding
alternative solution or imposes the corset of a constitutionally-compliant interpretation that
reduces political freedom of action close to zero….
It increasingly abandons the course of judicial restraint and, through directives to the
legislature, thrusts itself headlong into the competition for political power. This tendency
also emerges where the legal basis seems so unclear and ambiguous to the unbiased obser-
ver, that the boundary between legal conclusions and political commitments becomes
fluid….
This progressive emasculation of Parliament does not strike me as the crown of the
Rechtstaat.462

Hans-Jochen Vogel, the justice minister—who for many years had been a peacemaker
between Karlsruhe and Bonn—gave a similarly critical, though more measured, speech the
same week.463 In early June, Helmut Schmidt joined the fray.464
The Union parties, hardly disinterested observers, rose to the Court’s defence.
A CDU press conference held the day after Börner’s speech defended the Court against
the Hessian’s indictment.465 The SPD responded the next day with a statement back-
ing Börner, noting that former CDU chairman Karl Carstens had also criticized the
Court sharply, and on similar grounds, in his 1971 memoir.466 A  week later Jochen
Lengemann, a CDU member of the Hessian state Parliament, called Börner an ­‘arsonist
in the mask of a Biedermann’.467 Union leaders argued that the Court’s frequent invali-
dation of Social–Liberal measures, and the SPD’s consequent carping about the Court,
were evidence, not of the Court’s partisanship, but of the ruling parties’ disregard for
the constitution. Helmut Kohl, the CDU boss, scoffed that the SPD maintained an
‘arm’s-length relationship’ with the Basic Law.468 Heiner Geiβler, a CDU party secretary,
published a pamphlet called The SPD and the Law, in which he chronicled the govern-
ment’s constitutional offences and ascribed to its leaders a ‘law-overcoming strategy’
(Rechtsüberwindungsstrategie).469 It is hard to say whether this Christian Democrat
counteroffensive made the Court look less partisan or more.

462  Reported in Frankfurter Rundschau (22 May 1978) 4; Süddeutsche Zeitung (22 May 1978) 2; FAZ (23 May

1978) 5 (with commentary by JG Reiβmüller, 12). Reproduced in ‘An die Hüter der Verfassung’ Frankfurter
Rundschau (30 May 1978) 4.
463  See Manfred Beer, ‘Vogel mahnt Verfassungsrichter’ Süd-West Presse (3 May 1978); ‘Kummer mit dem

Verfassungsgericht (Interview with Hans-Jochen Vogel)’ Nürnberger Nachrichten (23 May 1978); ‘Vogel kritisi-
ert ‘einengende’ Urteile des Verfassungsgerichts’ Die Welt (24 May 1978) 5.
464  See Friedrich Karl Fromme, ‘Attacken auf das Bundesverfassungsgericht’ FAZ (7 June 1978) 5.
465  ‘Kritik der CDU an Börners Gerichts-Schelte’ FAZ (23 May 1978) 6.
466  ‘Arndt:  Auch Carstens hat das Verfassungsgericht kritisiert’ FAZ (24 May 1978)  5; see also Heinrich

Sprenger, ‘Carstens:  Fehlurteile’ Frankfurter Rundschau (14 June 1978). For Carsten’s comments, see Karl
Carstens, Politische Führung: Erfahrungen im Dienst der Bundesregierung (Deutsche Verlags-Anstalt 1971) 82.
467  Bernd Jasper, ‘CDU bezeichnet Börner als ‘Brandstifter’’ Frankfurter Rundschau (1 June 1978); see also

‘Parteienstreit um das Bundesverfassungsgericht’ FAZ (1 June 1978) 3.

468  FAZ (17 April 1978) 4.
469 CDU-Bundesgeschäftsstelle, Die SPD und das Recht. Verfassungsverstöβe der SPD und ihre Ursachen

(Bonn 1978).
176 Confrontation, 1971–1982

Among press organs sympathetic to the government, it was surely the latter. The months
following the Conscientious Objection decision witnessed an unprecedented flurry of media
criticism. The Court was variously scored as a ‘Super-legislature’,470 a ‘fourth authority’
(vierte Gewalt),471 ‘power-hungry’472 lords of a ‘German Judicial State’,473 and wayward
saints who had lost their halos.474 Der Spiegel published a series of long and critical articles,
soon published together under the title Judges Make Politics—a direct disavowal of Ernst
Benda’s protestations to the contrary in his inaugural interview with that magazine.475
Werner Holtfort, an SPD jurist, issued a much-repeated call for the Court to return to its
‘democratically appropriate’ role.476 A string of books and articles from SPD professors and
publicists called for institutional reforms, such as abolishing abstract review and establish-
ing a two-thirds voting requirement. For the first time in its history, the Court’s democratic
legitimacy faced a widespread challenge.
The press offensive persisted through the summer. In autumn, the controversy escalated in
the autumn. In late September, Vogel again called on the Court to return to the path of virtue
and restraint.477 On 1 October, the Protestant Academy in Tutzing hosted a panel discussion on
‘The Future of our Democracy’. The title was tepid, but the panels—especially one consisting of
Helmut Schmidt, the chancellor; Walter Scheel, the federal president; Karl Carstens, president
of the Bundestag; and Ernst Benda, the chief justice—were impressive.478 The discussion got
interesting when the first man named exchanged fire with the last.
In the course of one comment, Schmidt spoke in passing of the Court’s Parliamentary
Pay judgment. That case, Schmidt suggested, was a good example of the Court’s departure
from the path of self-restraint, a path to which the Court should swiftly return. A consti-
tutional organ, the chancellor admonished, needn’t ‘exhaust its competences to the very
limit’.479
The chancellor had touched a nerve, and the chief justice answered with ill-concealed anger.
Benda took exception to ‘the observations with which the Herr Chancellor thought it tasteful to
pass judgment before this forum on another constitutional organ’—an organ, Benda stressed,
‘not subordinate’ to the chancellor’s own.480 Tasteful or not, Schmidt’s thesis was absurd. Each
organ must ‘administer the rights and duties laid upon it—no more, but also no less’.481 Finally,
Benda wished to disabuse his audience of the impression Schmidt had left that ‘it is one of the
tasks of the head of the federal government to level censures on the highest court in the land,
which is also a constitutional organ’.482 Schmidt tried to defuse the tension, but likely did the
opposite, by replying that ‘[w]‌hat we all probably need to learn a little bit together is how to
endure criticism and take it to heart’.483 ‘No constitutional organ’, the chancellor lectured, ‘can
assume it is above criticism’.484

470 Robert Leicht, Süddeutsche Zeitung (17 April 1978). Hans Robinsohn spoke of a ‘supralegislator’

(Übergesetzgeber). Das verkehrte Grundgesetz (Vorgӓnge 1979) 44–53.

471 Mengen, Vorwärts (20 April 1978).
472  ‘Dem Bundesverfassungsgericht Machthunger zugetraut’ Frankfurter Rundschau (5 June 1978).
473  ‘Richterstaat Deutschland: Auf den Kadi gekommen’ Wirtschaftswoche (7 July 1978) 26–28, 37–39.
474  Michael Charlier, ‘Karlsruhe zerstört seinen Nimbus’ Deutsche Volkszeitung (15 June 1978) 5.
475 Rolf Lamprecht and Wolfgang Malanowski, Richter machen Politik. Auftrag und Anspruch des

Bundesverfassungsgerichts (Fischer 1979).
476  Werner Holtfort, ‘Praktische Vorschläge, das Bundesverfassungsgericht in eine demokratieangemessene

Rolle zurückzuführen’ in Verfassungsrecht und Politik (n 4) 191.

477  Winfried Didzoleit, ‘Vogel empfiehlt Bundesverfassungsgericht Zurückhaltung’ Frankfurter Rundschau

(29 September 1978) 1; ‘Vogel kritisiert BVerfG’ Stuttgarter Zeitung (29 September 1978).
478  The discussion was reproduced in Norbert Schreiber (ed), Die Zukunft unserer Demokratie. Die Tagung

1978 der Stiftung Theodor-Heuss-Preis und des Politischen Clubs der Evangelischen Akademie Tutzing (Deutscher
Taschenbuch Verlag 1979) 75.
479 ibid 122. 480 ibid 125. 481 ibid. 482  ibid 125–26. 483 ibid 134.
484 ibid 134.
 Crisis 177

The press delighted in this verbal row.485 Many commentators sided with Schmidt.486
Hans Schueler wrote that Benda’s reaction had ‘only once more manifested arrogance and
obstinacy—the two principal evils into which the highest court has fallen’.487 Benda and
Schmidt later met privately to profess good will, but it became increasingly clear that public
criticism was undermining the Court’s standing.
Surveys suggested a loss of public trust. In 1977, despite five years of allegations of judi-
cial activism, an Infas Institute study found that 65 per cent of West Germans still trusted
the Constitutional Court. By autumn 1978, the figure had fallen to 57 per cent. Trust in
Parliament, by contrast, had risen. The Court, hitherto the most trusted institution in the
country, had been surpassed by the healthcare system. If there was any consolation for the
Court, it was that trust in journalists was abysmal.488 But this consolation was small. Justice
Martin Hirsch, whose dissenting vote in the Conscientious Objection judgment had fur-
nished a rallying cry for the Court’s critics, fretted in a public interview that the Court was
‘endangered as never before’.489

D.╇Endgame
The danger was linked to a pending case. Once again, the Court was asked to review a
major government reform, this one tied to the SPD’s roots as a workers’ party. On
4  May 1976, the Bundestag passed the so-called Mitbestimmungs gesetz, literally the
‘Co-determination Act’. The law required substantial employee representation, though
something short of parity, on the governing boards of companies with more than 2,000
employees. Co-determination had been the subject of one of the sharpest and most endur-
ing debates of the 1960s and 1970s. The 1976 law was a soft revision of a much bolder SPD
proposal that sought full parity, an ambition the party had by no means abandoned. The
softer law entered into force on 1 July 1976. Employer groups challenged its constitution-
ality shortly thereafter.
The original complaint was signed, poignantly enough, by the then-president of the
Federal Coalition of German Employers’ Associations, Hanns-Martin Schleyer. The
employers complained that the law violated a fistful of fundamental rights—the right of

485╇ See, e.g., ‘Bundesverfassungsgericht soll Verantwortung des Parlaments respektieren’ FAZ (2 October

1978); ‘Bedenken des Bundespräsidenten über Diätenregelung der Parlamente’ Süddeutsche Zeitung (2 October
1978) 1; ‘Benda verbittet sich Kanzler-Zensuren’ Frankfurter Neue Presse (2 October 1978) 1; Claus Bienfait,
‘Benda: Es ist nicht Aufgabe des Kanzlers, dem höchsten Gericht Zensuren zu geben’ Die Welt (2 October 1978) 1.
486╇ See Hans Schuster, ‘Im Konflikt um die Grenze zwischen Recht und Politik’ Süddeutsche Zeitung (7/8

October 1978)  4; Hans Schueler, ‘Grenzen des Rechts. Das Verfassungsgericht im Widerstreit’ Die Zeit
(6 October 1978); Roderich Reifenrath, ‘Empfindliche Richter’ Frankfurter Rundschau (9 October 1978) 3; ‘Dat
ham wir uns so nich vorjestellt’ Der Spiegel (30 October 1978); Wolfgang Däubler and Gudrun Küsel (eds),
Verfassungsgericht und Politik (Rowohlt, 1979) 7–8; Friedrich Wilhelm-Dopatka, Das BVerfG und seine Umwelt
(Dunker and Humblot 1982) 84 fn 384. There were exceptions, including the recently retired Justice Willi Geiger.
See Walter Bajohr, ‘Zensuren vom Kanzler’ Rheinischer Merkur (6 October 1978); ‘Ehemaliger Richter gegen
Kritik am Verfassungsgericht’ Stuttgarter Nachrichten (9 October 1978); ‘Es gibt keine Niederlagen in Karlsruhe’
FAZ (9 October 1978)  5; Willi Geiger, ‘Gegenwartsprobleme der Verfassungsgerichtsbarkeit aus deutscher
Sicht’ in Thomas Berberich, Wolfgang Holl, and Kurt-Jürgen Maaβ (eds), Neue Entwicklungen im Öffentlichen
Recht. Beiträge zum Verhältnis von Bürger und Staat aus Völkerrecht, Verfassungsrecht und Verwaltungsrecht
(Alexander von Humboldt-Stiftung 1979) 132–33. At a symposium in Ludwigsberg, Geiger denied that the chan-
cellor or his ministers were authorized publicly to criticize Court decisions in an official capacity. He expressed
astonishment that the Court had yet to say as much firmly in an official statement. ibid 133.
487╇ Hans Schueler, ‘Grenzen des Rechts. Das Verfassungsgericht im Widerstreit’ Die Zeit (6 October 1978).
488╇ For reports of the Infas survey, see Winfried Didzoleit, ‘Ansehen des Verfassungsgerichts ist gesunken’

Frankfuter Rundschau (26 September 1978)  4; ‘Gesundheitswesen genieβt gröβtes Vertrauen’ Stuttgarter
Nachrichtern (26 September 1978) 8.
489╇ Rolf Lamprecht and Wolfgang Malanowski, ‘Im Moment gefährdet wie noch nie’ (Interview mit Martin

Hirsch) Der Spiegel (27 November 1978).

178 Confrontation, 1971–1982

property and the freedoms of contract, occupation, association, and economic activity. In
Parliament, the law enjoyed bipartisan support. But employer groups hoped to find a sym-
pathetic ear in Karlsruhe. Most of them didn’t expect the Court to invalidate the law out-
right, but they hoped for a restrictive interpretation—one that would approve the 1976 law
as far as it went, but limit how far co-determination might go in the future.
Their model, of course, was the CSU ‘triumph’ in the Basic Treaty judgment. That judg-
ment, originally hailed by Social Democrats as a vindication of Brandt’s Ostpolitik and a
slap in the face of Franz Josef Strauβ, now appeared in Social–Democrat diatribes as a key
instance of the Court’s overreaching. Those diatribes coincided with the Court’s delibera-
tions in the co-determination case. That they began several weeks after the Conscientious
Objection judgment and coincided with the eleventh national congress of the Confederation
of German Trade Unions (Deutsche Gewerkschaftsbund, or DGB) led leery conservatives to
suspect an organized campaign.490
Those suspicions were heightened by bellicose rumblings within the DGB itself. At the
group’s national congress in late May 1978, Oskar Vetter, the chairman, complained that in
the Federal Republic judges, rather than elected lawmakers, now had the last word on legis-
lation. ‘We are the last country in western Europe’, Vetter cried, ‘where a lockout through
high-court jurisprudence, a misinterpretation of the Basic Law, is allowed’.491 With a trucu-
lent undertone, Vetter warned that if the justices couldn’t read the signs of the times, the
unions would have to take ‘a different path’.492 Months later, while the Court conducted
oral arguments in the co-determination case, Friedelhelm Farthmann (SPD), a minister in
the North-Rhine Westphalia state government, cautioned the Court to be mindful of the
‘dimension’ of the decision, and not overstep its bounds, as it had recently gotten into the
unfortunate habit of doing. A judgment declaring the law unconstitutional would be ‘gro-
tesque’. But a limiting interpretation would be calamitous as well. Such a judgment would
have a ‘terrible anti-parliamentarian effect’, would do ‘more damage’ to the credibility and
stability of the democratic social order than ‘thousands of extremists’.493 In a unanimous
statement issued on 6 December 1978, the Court concluded that Farthmann’s remarks had
gone too far. They were an ‘undisguised attempt to exert pressure on the Court to the benefit
of one side’. The Court reprimanded Farthmann and excluded him from further participa-
tion in the case.494
Outwardly, the four days of oral argument were uneventful. All sides conceded that
the trial was fair and free from external pressure.495 Tensions, however, remained sharp.
Criticism of the Court, some of it with an ominous edge, continued.496 Conservatives com-
plained that critics were trying to pressure the Court into endorsing the Co-determination

490 Friedrich Karl Fromme, ‘Attacken auf das Bundesverfassungsgericht’ FAZ (7 June 1978). Willi

Geiger rejected this as an unsubstantiated conspiracy theory. See Willi Geiger, ‘Erfahrungen aus 25 Jahren
Verfassungsgerichtsbarkeit’ in Vom Selbstverständnis des Bundesverfassungsgerichts (Hannover: Landeszentrale
für politische Bildung 1979) 32.
491  ‘Zweierlei Maß’ FAZ (24 May 1978) 13.
492  ‘Vetter übt scharfe Kritik am Bundesverfassungsgericht’ Die Welt (25 May 1978) 1.
493  ‘Farthmann warnt Karlsruhe’ FAZ (2 December 1978) 5; ‘Warnschuβ in Richtung Karlsruhe’ Die Welt

(2 December 1978) 1.
494  FAZ (9 December 1978) 5; Die Welt (8 December 1978) 6.
495  Friedrich Karl Fromme, ‘Das Eigentumsrecht—streng und abstrakt’ FAZ (30 November 1978)  3; ‘Das

Gericht schlieβt sich dem Dank nicht an’ Die Welt (2 December 1978) 4.
496  See Jürgen Scharf, ‘Harte Worte über die Hüter der Verfassung’ Kölner Stadt-Anzeiger (14 December 1978);

SPD-Kritik am Bundesverfassungsgericht, Süddeutsche Zeitung (16 January 1979); ‘Ehmkes Peitschenknall

und Geigers stachelige Milde’ FAZ (2 February 1979) 12; ‘Bundesverfassungsrichter—‘allergisch’’ Süddeutsche
Zeitung (5 February 1979); Klaus Lange, ‘Wie in der Residenz des Rechts die Bonner Politik gestoppt wird’
Frankfurter Rundschau (8 February 1979) 14–15.
 Crisis 179

law without qualification. Chief Justice Benda warned against efforts to intimidate or influ-
ence the Court.497 Friedelhelm Farthmann called recklessly for more of them.498 The fed-
eral government feared a ‘hot spring’. Trade unions warned Herbert Ehrenberg, the labour
minister, that a negative judgment—either annulling the law or restrictively construing
it—would lead to labour agitation. Labour leaders would call the faithful to the barricades
in a sequence of admonitory strikes. There was even talk of a general strike. The first of
March, when the Court would announce its judgment, would be ‘an historic date’. After
that, one cabinet minister predicted, ‘nothing will be as it was before’.499
The evil hour tolled. In a cover-page threnody in the 2 March 1979 issue of Die Zeit,
Hans Schueler could hardly contain his disappointment. 500 It was only to be expected,
Schueler sighed, that the Court would conclude that co-determination could come this
far and no further. That conclusion was entirely in keeping with the Court’s custom of
issuing political directives, its pattern of second-guessing the government and the legis-
lature. The ‘politicians in the red robes’ had once more assumed their beloved role as
‘preceptor’ to the nation. The real tragedy, though, was not that co-determination had
been halted in its tracks. Something larger was at stake: ‘the future of one of the most
estimable institutions of modern democracy—constitutional justice’. If the Court con-
tinued to hurtle along in its wild career of making and prescribing policy, rather than
reviewing the legality legislative acts, ‘we will one day have to look to the Court itself to
find those truly guilty of the failure of the great idea of a power of judicial review over
all state authority’. Of well-intentioned warnings, Schueler concluded, there will have
been no lack. 501
Schueler’s editorial was another such warning. But it proceeded from false premises.
Die Zeit had gone to press on 1 March before the Court had actually announced its judg-
ment. Schueler had been apprised of the judgment’s contents beforehand; but he had been
apprised wrongly. The First Senate’s actual judgment was very different from Schueler’s
phantom.502 The Senate sustained the law, as Der Spiegel summarized, ‘without “ifs” or
“buts”’. And it did so unanimously. At the climax of a decade of breathtaking judicial
activism, the Court stilled the storm with an act of deference.
Deference, rhetorically and substantively, was the dominant theme of the Court’s long
opinion. The ninety-page judgment had only one headnote: ‘The expansion of employee
co-determination in the Co-determination Act of 4 May 1976 is compatible with the fun-
damental rights of the corporations and shareholders covered by it’.503 The Basic Law con-
tained ‘no explicit guidelines on the co-determination of employees. This is a matter for
federal legislation’.504
The Senate began its analysis by limiting its holding to the facts of the case before
it: ‘The sole object of review is the challenged … provisions of the Co-determination Act;
whether other regulations of the co-determination of employees would be compatible
with the Basic Law is not to be decided’.505 The Court was guided by a single overarching
principle—that the constitutional order of the Basic Law did not prescribe a given eco-
nomic system. Specifically, it did not enshrine the canons of market capitalism. The people,

497  Knut Teske, ‘Benda warnt vor der Einfluβnahme auf Karlsruhe’ Die Welt (5 February 1979).
498  ‘Farthmann: Ich will die Richter in Karlsruhe beeinflussen’ Die Welt (13 February 1979); ‘Farthmann redet
zuviel’ Süddeutsche Zeitung (14 February 1979); ‘Farthmann erschreckendes Verfassungsverständnis vorgewor-
fen’ Frankfurter Rundschau (15 February 1979); see also Hans H. Klein, ‘Mitbestimmung durch Gewalt’? Die
Welt (22 February 1979).
499  ‘Mitbestimmung ohne wenn und aber’ Der Spiegel (5 March 1979).
500  ‘Politiker in der Richter-Robe’ Die Zeit (2 March 1979) 1. 501 ibid.
502  50 BVerfGE 290 (1979). 503 ibid 290. 504 ibid 294. 505 ibid 322.
180 Confrontation, 1971–1982

through their elected representatives, would determine the structure of the West German
economy.
In so holding, the First Senate was on solid textual ground. The right to property in
Article 14(1) GG stipulated that the ‘contents and limits’ of property were ‘to be determined
by statute’. Article 14(2) provided that property entailed duties, that its use must ‘serve the
good of the whole’. There were limits to both principles, but none of those limits had been
crossed by the 1976 law. That law did not, after all, provide full parity. Shareholders still
held a slight predominance and therefore, if need be, could still have the last word. Some
employer groups saw in this reasoning a ray of light—a suggestion that a system of full par-
ity in which shareholders did not have the last word would be unconstitutional.506 But that
is not what the Senate said. What it said was that the law as it stood did not infringe any of
the rights the complainants invoked. It left all other questions open.
It was universally believed that Konrad Hesse, a professor of constitutional law who joined
the Court in 1975, had written the judgment. The judgment pleased and impressed nearly
everyone with its thoroughness and rigour. For many, the decision was no mere capitulation
in the face of political pressure; it was a statesmanlike articulation of enduring principles.
The judgment was greeted in Bonn with a massive sigh of relief.507 Oskar Vetter, the
labour leader, expressed ‘deep satisfaction’ with the decision. 508 Employers were dis-
appointed by the judgment but promised to respect it.509 Left–Liberal journalists were
jubilant. Hans Schueler rejoiced to learn of his mistake. ‘The Court’, he rhapsodized,
‘has found its way back to its good old style’.510 The judgment was full of ‘perspicacious
observations and thankworthy insights from the Guardians of the Constitution’. Hüter
once more and Herr no longer. Others joined the chorus or kept their peace. Those who
had lately reviled the Court’s overreaching now praised its restraint.511 Public criticism
of the Court swiftly abated. Scholars returned to criticizing the Court only in expert
forums. ‘Criticising the Constitutional Court’, two of them observed some months after
the judgment, ‘is no longer popular’.512 The Court’s season of confrontation had come to
an abrupt close.

Conclusion
Or so, at the moment, it seemed. It is tempting to see the Court’s Co-determination judg-
ment as a pragmatic surrender similar to the United States Supreme Court’s 1937 decision

506  See ‘Das Mitbestimmungsgesetz ist verfassungsgemäβ. Karlsruhe:  Keine volle Parität’ FAZ (2 March

1979) 1; ‘Mitbestimmung ohne wenn und aber’ Der Spiegel (5 March 1979); ‘Den Anteilseignern kommt ein
leichtes Übergewicht zu’ Die Welt (2 March 1979) 2.
507 Peter Diehl-Thiele, ‘Ein bedeutendes Urteil aus Karlsruhe’ Süddeutsche Zeitung (2 March 1979)  4;

‘Mitbestimmung ohne wenn und aber’ Der Spiegel (5 March 1979); Peter Gillies, ‘Nach dem Karlsruher
Urteil: Alle sind erleichtert’ Die Welt (2 March 1979) 1; ‘Für alle etwas’ FAZ (2 March 1979) 1.
508  ‘Die Arbeitgeber respektieren den Spruch aus Karlsruhe’ FAZ (2 March 1979) 2; ‘Das Mitbestimmungsgesetz

ist verfassungsgemäβ. Karlsruhe: Keine volle Parität’ FAZ (2 March 1979) 1; ‘Mitbestimmung ohne wenn und
aber’ Der Spiegel (5 March 1979).
509 ‘Die Arbeitgeber respektieren den Sprech aus Karlsruhe’ FAZ (2 March 1979)  2; ‘Beschwerdeführer

bekunden Respekt’ Süddeutsche Zeitung (2 March 1979) 1.

510  Hans Schueler, ‘Ein Lehrstück über die Verfassung. Ein Richterspruch dient dem Rechtsfrieden’ Die Zeit

(9 March 1979).
511  Nearly twenty years later, Hans-Jochen Vogel still remembered the judgment in gratefully panegyircal

terms. It ‘left a powerful impression on all involved’, Vogel noted, ‘not just me’. Thanks in part to its rapporteur
Konrad Hesse—‘one of the most outstanding constitutionalists I have ever encountered’—the judgment ‘was
written with consummate concision’ and reached only the matter ‘that was to be decided’. Vogel (n 145) 97.
512  Gudrun Küsel, ‘Vorbemerkung’ in Verfassungsgericht und Politik (n 4) 8.
 Conclusion 181

in West Coast Hotel v Parish.513 Certainly, the judgment muted institutional criticism and
defused social tension. It fostered national harmony and furthered societal integration.
The Court was praised for its deference, but also for promoting stability in a country
that craved stability. In the title of a prominent 1979 book, the political scientist Kurt
Sontheimer called West Germany ‘The Destabilized Republic’.514 Unsettled by the encoun-
ter with domestic terrorism, chastened by yet another economic slump, and fearful (with
a bellicose Ronald Reagan challenging Jimmy Carter for the American presidency and
NATO planning to plant Pershing missiles on West German soil) of a resumption and
warming of the Cold War, the Federal Republic at the end of the 1970s was in little mood
to dare more democracy. In any case, there was no one in the political class to lead such an
enterprise. Helmut Schmidt had won widespread plaudits for his handling of the terrorist
crisis, but his hawkish foreign policy put him at odds with much of his party. Schmidt did
win reelection in October 1980. But that was his final triumph. It was all downhill from
there, until in February 1982 he became the first chancellor ousted by a constructive vote of
no-confidence. In the meantime, Schmidt presided over an increasingly divided party and
an increasingly brittle coalition. The co-determination law was the coalition’s last major
reform. The Court’s blessing on it turned out not to be a green light for further innovation
but a deferential salute to the dying.
The Court never again resisted a series of government initiatives quite so aggressively
and in quite so compressed a period. But that is at least in part because it never again faced
such an aggressive sequence of reforms. The Court’s posture after 1979 was not passive and
deferential, but protective and patriarchal. In the early 1980s the Court’s reputation and
stature were enhanced as the Court quashed an unpopular data collection law, reminding a
grateful populace of its venerable role as guardian of fundamental rights, and as a funding
scandal implicating all parties in Parliament emphasized the Court’s comparative probity.
The Court reached a low point during the 1970s by seeming to decide cases on partisan
grounds. It reached a high point during the 1980s by emerging as the guardian of the citi-
zenry against the power of over-sized and untrustworthy political parties. Confidence in
the Court surged as trust in parties plummeted. The constitutional moment proclaimed
by Willy Brandt in 1969 had long since passed. The guardians of the West German consti-
tutional tradition—challenged and criticized, but ultimately strengthened—endured. In
hindsight, the 1979 Co-determination judgment represents not a capitulation, but a close
parenthesis, a return to continuities with deep roots.

513  300 US 379 (1937).

514  Kurt Sontheimer, Die verunsicherte Republik: Die Bundesrepublik nach 30 Jahren (Piper 1979).
 4
Continuity, 1982–1990
If one now regards the individual constitutional organs and the weight intended
for them in the 1949 Basic Law, the constantly increased importance of the Federal
Constitutional Court stands out above all else. Its establishment was a true innova-
tion in our constitutional history. It has won great prestige and powerful influence.
This is certainly a result of the quality of its jurisprudence, but not only that. It is also,
and moreover, a symbol for the political condition of the society, for a diminishing
efficacy of the classical separation of powers, for an increase of partisan-tactical com-
promises not always sufficiently legally secured. In this respect, the Court operates as a
longed-for supra-partisan oasis.
—Richard von Weizsӓcker (1992)1

Introduction
Throughout its history, the public’s esteem for the Constitutional Court has been shaped
by the Court’s relationship with political parties. In the early 1950s, the justices won popu-
lar acclaim with a flinty display of independence from the parties who nominated them.
During the Court’s first decade, the justices helped enshrine the constitutional legitimacy of
opposition parties. In its 1961 Television judgment, the Court thrilled the public by sharply
distinguishing the state from the parties that ruled it. During the 1960s, the Court stirred
controversy first by endorsing, then by limiting, state funding of parties. During the 1970s,
the Court sparked a crisis of popular legitimacy by seeming, in momentous cases, to split for
partisan reasons on partisan lines. The Court’s moments of greatest popular regard were its
moments of greatest apparent independence from partisan interest. The public’s trust in the
Court declined sharply when the justices seemed too close to the parties.
As the Court approached its fourth decade, political parties had reached a nadir
of unpopularity. In the epic battle for the chancellorship in 1980, both leading
candidates—Helmut Schmidt and Franz Josef Strauβ—were far more popular than the
parties that backed them. Widespread disgruntlement with existing parties fuelled the
formation, for the first time since the Second World War, of a viable fourth party—a
self-styled anti-party, the Greens.
In 1982, Wilhelm Hennis published an essay fiercely critical of what Hennis saw as the
disproportionate prominence of political parties in the life of the Bonn Republic.2 On the
one hand, Hennis wrote, the ‘party state’ character of the Federal Republic had become
‘dangerously overstretched [ueberdehnt]’; on the other, the parties had ‘disconnected [abge-
koppelt] themselves from the autonomous will-formation of the people’. The intellectual
and jurisprudential culprit was Gerhard Leibholz, who in earlier decades had done much
to etch his conception of the party state in the jurisprudence of the Constitutional Court,
and thereby to inscribe it in the political culture of the Federal Republic. Leibholz had died

1  Richard Weizsӓcker and others, Richard von Weizsӓcker im Gesprӓch mit Gunter Hofmann und Werner

A. Perger (Eichborn 1992) 158–59.

2  Wilhelm Hennis, ‘Überdehnt und abgekoppelt’ in Wilhelm Hennis, Auf dem Weg in den Parteienstaat.

Aufsätze aus vier Jahrzehnten (Reclam 1998) 74, 78.

184 Continuity, 1982–1990

in 1981, but his creed lived on. Leibholz’s notion of political parties, Hennis wrote, ‘went so
far beyond the intentions of the Basic Law that one can hardly describe it as anything other
than unconstitutional’.3 It is one of the great ironies of the final decade of the Bonn Republic
that the Court that did so much to make the parties powerful won deafening plaudits for
holding them at bay.
The period between the Co-determination judgment in March 1979 and the Federal
Republic’s second regime change in October 1982 was a quiet one for the Constitutional
Court. The clamour of public criticism that preceded that judgment quickly subsided; the
political brisance of the Court’s docket abated. What major policies the Court did review
during this period—a 1977 law introducing no-fault divorce, for instance—it approved
with limited fanfare.4 The Court issued important doctrinal judgments—notably in the law
of property, where the Court, under the influence of its property law rapporteur Werner
Böhmer, renounced the traditional takings jurisprudence developed by the Federal Court
of Justice, reasserted its own interpretational sovereignty in the field, and reaffirmed the
legislature’s power to define the contours of the right to property and the social duties that
attend it.5 Such judgments generated much scholarly comment but drew little popular
attention. The Court, it seemed, had quit the stage of high politics.
Appearances, however, were deceiving. The Court’s political quiescence was brief.
Almost immediately after the advent of a Christian–Liberal (CDU/CSU–FDP) coalition
under Helmut Kohl in autumn 1982, the Court became again the forum in which many of
the nation’s most burning political battles were contested and decided—the forum, cynics
griped, in which political conflict was constitutionalized. Indeed, the questions of constitu-
tional politics that the Court considered during the Christian–Liberal era of the 1980s were
no less explosive than those it considered during the Social–Liberal 1970s. The outcomes,
for Court and country, were quite different. There was, in the new decade, no sustained con-
frontation between the country’s highest court and its ruling coalition. But neither did the
Court unfailingly defer to government initiatives. There were times when the Court, invok-
ing the doctrine of judicial restraint, sustained government activity of manifestly dubious
constitutionality. But there were other occasions—some of them quite dramatic—in which
the Court enforced fundamental rights vigorously to annul democratically promulgated
laws—in the most remarkable case, a law enacted unanimously by the Bundestag.
The split between deference and assertion often ran between the Court’s two chambers.
The Second Senate was more inclined to yield pragmatically before claims of raison d’état;
the First Senate to enforce robustly the guarantees of individual rights. The upshot, with
critical exceptions, was that the Court was by turns commended for its restraint and lion-
ized for its intervention. Those critics most dismayed by the Court’s acts of deference were
often the very critics who in earlier times most loudly reproached its lack of restraint. The
criticism lost much of its force in the face of this manifestly partisan reversal. On the other
hand, those most cheered by the Court’s aggressive interventions were rarely those with
strong ties to the traditional parties.
In the last years of the Bonn Republic, the Court was never the object of serious criticism
from the leaders of major parties. This was partly the product of an entrenched pattern
whereby all parties claimed victory after every major judgment. But it was also the product
of parties’ and politicians’ increasingly weak popular standing and the Court’s strong one.

3 ibid. 4  See 53 BVerfGE 224 (1980); 53 BVerfGE 257 (1980).

5  See 58 BVerfGE 300 (1981). Böhmer’s influence in the field extended beyond the immediate judgment through
his scholarly writings after leaving the Court in 1983. See, e.g., Werner Böhmer, ‘Die Rechtsgeschichtlichen
Grundlagen der Abgrenzungsproblematik von Sozialbindung und Enteignung’ (1985) 24 Der Staat 157.
 High (Constitutional) Politics 185

The early Kohl era was a season of scandal. Discontent with traditional parties mounted
as major parties became embroiled in scandal. At the 1976 elections, with a voter partici-
pation rate of 90.7 per cent, the percentage of voters who polled for the Union parties or
the SPD was 91.2 per cent. By 1990, voter participation had dropped to 77.8 per cent; from
this diminished voter base, only 77.3 per cent opted for one of the two largest parties. An
Emid survey in 1983 found that only 50 per cent of West Germans trusted the parties to
solve the country’s problems; by 1990, that tally had sunk to 37 per cent.6 Media cover-
age of parties and politicians was largely—often caustically—negative, to the point that
politicians of all stripes complained that the media were treating them as enemies rather
than mediating between them and the public.7 It was an era of political disenchantment, of
Politikverdrossenheit run rampant.8
By contrast, the justices of the Constitutional Court enjoyed enormous, unprecedented
approval. That approval soared after a 1983 judgment enjoined a proposed census that had
provoked widespread execration and sometimes hysterical fears. But the approval endured
when the hysteria passed. In a season when Bonn seemed riddled by impotence and sleaze,
Karlsruhe emerged, by contrast, as a beacon of probity and strength. After a party financing
scandal led many West Germans to conclude that their political rulers were for sale, many
gave thanks that their judicial guardians were not. Democratic critiques of constitutional
justice were never as sharp or obsessive in the Federal Republic as they have been in the
United States. But in the final years of the Bonn Republic, they disappeared almost entirely.
The citizens of the second German Republic had long ceased to see their elected repre-
sentatives as the exclusive proprietors of democratic legitimacy. When the Wall finally fell,
West Germans no longer defined democracy as rule by popular representation. German
democracy had become something more substantive—robust protection of human rights,
for instance, and unwavering reverence for human dignity. Democracy-based critiques of
the Court that enforced these values lost force. Enormous popular regard for the Court,
coupled with galloping disenchantment with politicians and political parties helped justify,
at least indirectly, the Court’s practice of announcing its judgments ‘Im Namen des Volkes!’9

I.  High (Constitutional) Politics

At the outset of the 1980s, the economic and political outlook of the Federal Republic was
bleak. Growth continued to stagnate; unemployment began to soar. Between 1980 and 1983
the ratio of unemployed rocketed from under 3 per cent to over 9 per cent. Never before
had the Federal Republic had more than a million unemployed; by February 1983, 2.5 mil-
lion were without work. The Soviet invasion of Afghanistan in 1979, followed by the elec-
tion of the sabre-rattling Ronald Reagan to the American presidency in 1980, threatened a
hasty end to the Cold War thaw. This, in connection with NATO plans to station Pershing
warheads on West German soil, contributed to a mass sense of insecurity. Support for the

6  Andreas Wirsching, Abschied vom Provisorium (Duetshe Verlags-Anstalt 2004) 201–02.

7 ibid 202.
8  The phenomenon provoked a large contemporary literature. For a sampling, see Hermann Scheer, Parteien

kontra Bürger? Die Zukunft der Parteiendemokratie (Piper 1979); Hennis (n 2); Helmut Herles and Friedric
W. Husemann, Politikverdrossenheit: Schlagwort oder Zeichen der Krise? (Aktuell 1993). The fiercest critic of
political parties and the party system was Hans Herbert von Arnim. See his Die Partei, der Abgeordnete und das
Geld (Hase & Koehler 1991); Der Staat als Beute: wie Politiker in eigener Sache Gesetze machen (Knaur 1993);
Diener vieler Herren: die Doppel- und Dreifachversorgung von Politikern (Knaur 1998); Vom schӧnen Schein der
Demokratie: Politik ohne Verantwortung—am Volk vorbei (Droemer 2000).
9  ‘In the name of the People!’
186 Continuity, 1982–1990

governing Social–Liberal coalition dwindled swiftly. The coalition won the dramatic elec-
tions of 1980, but that victory reflected the comparatively greater popularity of Helmut
Schmidt over his Union rival, Franz Josef Strauβ, rather than the comparative popularity
of the coalition parties vis-à-vis the opposition. The result was a negative referendum on
Strauβ rather than an endorsement of the coalition. For Schmidt, the election was a per-
sonal triumph. But it would be his last. Increasingly Schmidt found himself isolated within
his own party, especially after his support for the NATO deployment proposals alienated
the party’s Left wing. In the two years following the election, the SPD’s unity and popularity
declined steadily.
The SPD’s coalition partner fared even worse. After clearing the 10 per cent hurdle in 1980
for only the second time, the FDP descended into crisis. The neophyte Green party, which
polled 1.5 per cent of the votes in 1980, rose rapidly in popularity as ever larger swathes of
the electorate worried about the sustainability of the environment and the stability of the
peace. By autumn 1982, the Greens had displaced the FDP as the third party in three state
elections. Fearing the worst, the FDP leadership opted to cast their lot once more with the
Union. On 17 September 1982, all FDP cabinet ministers resigned their posts. Shortly there-
after, the party’s national board and parliamentary leadership voted narrowly to pursue a
coalition with the CDU/CSU. On 1 October, by a vote of 256 to 235, the Bundestag ousted
Schmidt from the chancellorship and replaced him with the CDU chief, Helmut Kohl. It
was the first successful constructive no-confidence vote in the country’s history. After thir-
teen years in opposition, the Christian Democrats had returned to the helm.
The FDP’s position within the new coalition was precarious. All parties knew that new
elections would be fatal for the junior partner. Schmidt and his fellow Social Democrats,
spurned by their former allies, called for them immediately.
Helmut Kohl cut a very different figure from Willy Brandt, the last chancellor to preside
over a regime change. Brandt, the telegenic lady-killer, was—when he came to power—a
special darling of the media; throughout the 1970s, media coverage of Kohl was decid-
edly hostile. The new chancellor was an object of merriment to satirists and a jewel for
caricaturists, who delighted in lampooning Kohl’s wooden speeches and mocking his
pear-like frame.
Born in 1930, Kohl was the first chancellor whose entire political biography unfolded in
the Federal Republic. He was, even more than Schmidt, a committed pragmatist, with only
a handful of core convictions, none of them breathtakingly concrete—fostering European
unity, keeping the German Question ‘open’, strengthening the family, promoting historical
consciousness. On all material questions of policy, Kohl was adaptable. His conservatism
was of a Burkean bent; he wished to build a politics based on experience, not abstract theo-
retical models.10 When he became chancellor, Kohl declined to proclaim a new dispensa-
tion.11 He announced a ‘turning point’ (Wende), not a constitutional moment.

A.╇Dissolution of the Bundestag

But even this Burkean craved popular legitimation. In any case, he needed time, and for
this reason, if for no other, Kohl was willing to accept the SPD’s call for new elections. The
damage ‘which has been wreaked over many years’, Kohl told the Bundestag in his inaug-
ural message of 13 October 1982, ‘cannot be set in order in a few months. For that, at least
an entire legislative period is necessary, which we won’t have without new elections’.12 Kohl

10╇ Wirsching (n 6) 23–25. 11╇ibid 47.

12╇ Verhandlungen des Deutschen Bundestages. Stenographische Berichte, vol 122 (1982) 7251.
 High (Constitutional) Politics 187

proposed that new elections be held on 6 March 1983. In the meantime, his government
could hope only to take emergency measures to rein in the country’s galloping unemploy-
ment and to cleanse the Augean stables of its public finances.13 The real work could be
undertaken only after a new election. But the path towards such an election was, as Kohl
conceded, ‘constitutionally not simple’.14
This, to understate, was an understatement. Article 68(1) GG provided that if a chancel-
lor’s call for a vote of confidence failed to receive the support of a majority of the Bundestag,
the federal president could, on the chancellor’s recommendation, dissolve the Bundestag and
call for new elections within two months. The major parties agreed that the Bundestag would
deny Kohl a vote of confidence, and that Kohl would then ask the president, Karl Carstens,
to dissolve the Bundestag on 6 January 1983, triggering new elections to be held on 6 March.
It required no great juristic fantasy or constitutional expertise to see the irregularity of a
parliament that had just made Kohl chancellor through a constructive vote of no-confidence
denying Kohl its confidence immediately thereafter.
The no-confidence vote took place on 17 December 1982—one day after Kohl’s gov-
ernment passed its 1983 budget by a vote of 266 to 206, and shortly after the government
instituted a series of austerity measures. Kohl was manifestly head of a majority coalition
capable of continued governance. This was plainly not the situation envisioned by Article
68. The no-confidence vote was an unblushing fabrication—a fraud and a farce, many com-
plained; in any event, a fiction.
Fiction is to law, wrote Bentham, what swindle is to trade.15 But many in the Federal
Republic thought this instance a bit rich. The stage was too large and the stakes were too
high to play so fast and so loose with a nuclear provision of the constitution. During the
Bundestag debates over the confidence vote, many who favoured new elections expressed
constitutional reservations about Kohl’s method of achieving them.16 SPD leaders were
most vocal in expressing such reservations. Willy Brandt, the party’s chairman, contended
that it would be better for Kohl simply to resign.17 Even before the no-confidence vote, lead-
ing constitutionalists and political scientists—Ernst Wolfgang Böckenförde, for example,
and Karl Dietrich Bracher—denounced the scheme as unconstitutional.18 After Carstens
dissolved the Bundestag formally, a multi-partisan quartet challenged the president’s
action before the Constitutional Court.
The complaint fanned the fervour of what was already an extraordinary public debate on
a question of constitutional law. Law professors, relishing a rare moment of relevance and
fame, became staple features of the popular press and the nightly news. The debate’s rhetoric
was impassioned. Böckenförde, a Social Democrat soon to join the Court’s Second Senate,
warned that the Basic Law was slipping down ‘a plebiscitary slope’.19 In an amicus brief,
Klaus Schlaich conjured the spectre of a revolving carousel of parliamentary dissolutions,

13 ibid 7215. 14 ibid.

Jeremy Bentham, The Works of Jeremy Bentham, vol 7 (W Tait 1843) 283.

15 
16  Horst Ehmke, for instance, said on behalf of the SPD Bundestag faction that, while his party was in favour of

new elections, the constitutionally sounder means to achieve them was simply Kohl’s resignation. Verhandlungen
des Deutschen Bundestages. Stenographische Berichte, vol 123 (1982) 8584.
17  ibid 8940. Karl Carstens, the federal president, countered in his televised statement of 7 January 1983

that resignation was a more complicated matter than the SPD leadership made out: it would merely trigger a
series of attempts to elect a new chancellor, not the immediate dissolution of the Bundestag. See ‘Auflösung
des 9. Deutschen Bundestages’, Bulletin der Presse- und Informationsamt der Bundesregeriung (10 January
1983) 17–18.
18  See Ernst-Wolfgang Böckenförde, Die Welt (27 September 1982); ‘In ein plebiszitäres Gefälle’ FAZ (11

October 1982) 18; Badische Zeitung (16/17 November 1982); Bracher, ‘Die Bonner Runde’ (on the television pro-
gramme ZDF, 4 November 1982).
19  Ernst-Wolfgang Böckenförde, ‘In ein plebiszitäres Gefälle’ FAZ (11 October 1982) 18.
188 Continuity, 1982–1990

an endless succession of collapsing governments—the spectre, in other words, of Weimar.20

Wilhelm Hennis went so far as to suggest that the slope might someday tilt toward a coup
d’état.21 Such Cassandra cries were unsettling, both to the public and to the politicians who
pushed for Parliament’s dissolution. Kohl put on a brave face, expressing every confidence
that the Court would vindicate his procedure. But Kohl and his comrades were clearly rat-
tled. They accused their critics of putting pressure on the Court.22 Union leaders responded
with mild pressure of their own. Benno Erhard, the CDU’s second man in the recently
disbanded Bundestag, hoped out loud that the Court wouldn’t mingle indecorously in the
political process.23
The Second Senate appointed 16 February 1983—Ash Wednesday, as it happened, less
than three weeks before the election—as its day of decision. Critics complained that the
judgment’s quality betrayed its hasty composition. Willi Geiger, the former justice, took
his old colleagues to task for what he thought was their unnecessary decision to decide the
case before the election.24 The judges themselves felt rushed; one complained publicly that
he was given less than twenty-four hours in which to write his dissenting opinion.25 But the
justices wanted to resolve the issue early, lest a later decision undermine the very govern-
mental legitimacy the new elections were intended to secure. They may also have felt some
pressure from the political branches.
The justices of the Second Senate took their seats at the head of a densely packed court-
room on the morning of 16 February. Against a backdrop of thick and muggy silence,
Wolfgang Zeidler, the vice president, read in a soft and steady voice from the Court’s long
judgment.26
The judgment was divided into two sections, the first some distance longer than the
second.27 The first section articulated constitutional principles; the second applied them to
the facts at hand. Many observers noted a disjunction between the judgment’s two halves.28
By general consensus, the former was more persuasive than the latter.
The Senate’s general discussion began by noting that Article 68 GG enacted an ‘open
norm’ in need of ‘concretization’.29 Then, in an uncharacteristic act of jurisdictional gener-
osity, the Senate noted that the necessary concretization was not the exclusive preserve of the
Constitutional Court, but that it required the participation of other constitutional organs
as well—including Parliament, the federal president, and the government. Structurally, the
constitution required agreement among all these organs to effect a dissolution. The several
organs supplied a mutual check against abuse.30 But the justices hastened to add that neither
consensus among these organs as to the desirability of dissolution, nor unity among the
parties in Parliament as to the necessity of new elections, was constitutionally sufficient.31
Other conditions must also be met.

20  Cited in Hans Hugo Klein, ‘Die Auflösung des Deutschen Bundestages nach Art. 68 GG’ (1983) Zeitschrift

für Parlamentsfragen 403, 403.

21  Wilhelm Hennis, Süddeutsche Zeitung (11 December 1982). See also, ‘Wie soll sich die Schranke öffnen?’

FAZ (29 October 1982) 11.

22  See, e.g., Helmut Kohl’s comments after the Court’s judgment in ‘Kohl: ‘Ich habe keine Alpträume’’ Die Zeit

(18 February 1983) 3.

23  In Friedrich Karl Fromme, ‘Stehend und unbewegt—wie es sich gehört’ FAZ (17 February 1983) 3.
24  Willi Geiger, ‘Die Auflösung des Bundestages nach Art. 68 GG: ein Kommentar zu den Vorgängen, die zu

der Neuwahl des Deutschen Bundestages am 6. März geführt haben’ (1984) 33 Jahrbuch des öffentlichen Rechts
der Gegenwart 41, 44.
25  62 BverfGE 1, 108 (1983) (dissenting opinion of Justice Rottmann).
26  See Fromme, ‘Stehend und unbewegt’ (n 23) 3. 27  62 BVerfGE 1 (1983).
28  See ‘Die Dämme nicht brechen lassen’ Der Spiegel (21 February 1983) 17.
29  62 BVerfGE 1 (n 27) 39. 30 ibid 35. 31 ibid 43.
 High (Constitutional) Politics 189

The Senate’s enumeration of those conditions did not sound good for Helmut Kohl.
Principal among them was that the chancellor must be unable, given the current configura-
tion of parliament, to go on governing.32 ‘The balance of political power in the Bundestag’,
the justices wrote, ‘must so paralyse or impair [the chancellor’s] power to act that he can no
longer meaningfully pursue a policy that enjoys the consistent support of the [parliamen-
tary] majority’.33 It would be unconstitutional, therefore, for a chancellor ‘whose sufficient
majority in the Bundestag is beyond doubt’, to seek, ‘at a seemingly suitable time, to have the
confidence question answered in the negative with the goal of dissolving the Bundestag’.34
Nor could the chancellor properly pose the confidence question simply by invoking the
‘special difficulties of the tasks at hand in the current legislative period’.35 The Senate made
clear, moreover, that lacking majority support was not the same as desiring greater legiti-
macy. It ran against ‘the fundamental meaning of Article 68, as well as of representative
democracy as established by the Basic Law, to call for the dissolution of the Bundestag and
new elections on the theory that a chancellor newly elected through a constructive vote of
no confidence requires, in addition to his constitutional legality, the legitimacy supplied by
new elections’.36 The lack of support must be real, the crisis genuine.
Up to this point, the judgment read rather like a brief for the complainants; thereafter
it read like a brief for the government. Moving from principles to practicalities, the Senate
shifted from strict standards to deferential application. The justices swallowed the explana-
tions put forth by Kohl and Carstens almost without qualification. Though Kohl’s govern-
ment had been able to push through a handful of urgent measures, those measures were
limited by subject and time.37 As of December 1982, the Senate concluded, Kohl had ample
reason to believe he could not command the long-term support of a stable majority. To sup-
port this conclusion, the justices dwelt at some length on the crisis of the FDP.38 The party
that least wanted new elections was thereby made primarily responsible for them—an irony
not lost on observers.39
The justices noted that, as recently as the Bundestag elections in 1980, the FDP had pledged
its allegiance to the SPD, pinned its electoral hopes on the person of Helmut Schmidt, and
achieved thereby the second-greatest success in the party’s history.40 The justices were not
so unkind as to suggest openly that a party perfidious to one chancellor could not be relied
on by another. But they did stress that the split with the SPD was hotly contested within the
FDP—approved only by a narrow majority of the party directorate and followed, in short
order, by the departure in droves of party prominences and a swift succession of calamitous
state elections.41 Moreover, upon joining the new coalition in October 1982, the FDP agreed
(the Court didn’t say with how little enthusiasm) that an election in March 1983 was indis-
pensable.42 Given the internal anguish of the FDP and the temporally limited nature of its
agreement to form a coalition, it was ‘plausible’ for Kohl and Carstens to deem dissolution
unavoidable.43 This concession was based on an unusual and likely unrepeatable conglom-
eration of facts. The Court had split the difference. The judgment spared the government
and the president the embarrassment of a ruling that they had violated the constitution; but
it admonished them unmistakably never to hazard such a gimmick again.
Not all members of the Second Senate were pleased with the outcome. Wolfgang Zeidler
concurred in the Senate’s holding but abhorred its reasoning.44 Under the Basic Law, he
argued, there was no such thing as a temporally limited vote of confidence. When mem-
bers of the Bundestag made Kohl chancellor, they pledged him their support till the end

32 ibid 44. 33 ibid. 34 ibid 43. 35 ibid. 36 ibid. 37 ibid 52.

38 ibid 52–60.   39  ‘Die Dämme nicht brechen lassen’ (n 28) 17.    40  62 BVerfGE 1 (n 27) 53.
41 ibid 53–55. 42 ibid 61. 43 ibid 62. 44 ibid 64–70.
190 Continuity, 1982–1990

of the legislative period.45 But Zeidler still thought the dissolution legitimate in light of
the steady evolution of the chancellorship’s ‘increasingly potent personalized, plebiscitary
component’.46 In crafting Article 68, Zeidler noted, the framers were fixated on the ghosts
of Weimar. But the Federal Republic now had a history of its own—roughly two-and-half
times longer than the whole history of Weimar. This lived experience was at least as import-
ant in constitutional construction as the Basic Law’s framing history.47 Voters now consid-
ered their votes in a Bundestag election as votes for the chancellor. A chancellor who hadn’t
won such an election reasonably felt the weight of popular skepticism, the burden of defi-
cient credibility. In Zeidler’s view, when Kohl asked Carstens to dissolve the Bundestag, the
president was faced with a choice of evils: a manipulated election or a chancellor ‘for whom
the credibility required for full political effectiveness was, in the broadest sense, placed in
question’.48 Carstens opted for the former. Perhaps this wasn’t the part of political wisdom;
but neither was it constitutionally objectionable.
Justices Joachim Rottmann and Hans-Justus Rinck, however, objected sharply. Justice
Rottmann, who drafted his dissent in less than a day, thought the majority’s extension of
the concept of instability to a case in which the chancellor feared losing a majority (rather
than lacking a majority in the first place) made nonsense of Article 68. As a rule, Article 68
could be invoked only by a minority chancellor, which Kohl demonstrably was not.49 Justice
Rinck, who served as a rapporteur in the case,50 had considerably more time to draft his long
dissent.51 Rinck reviewed the drafting history of Article 68 in great detail, concluding that
its unambiguous purpose was to empower a chancellor to secure a vote of confidence, not
to trigger new elections.52 The provision’s raison d’être was to enable an embattled chancel-
lor to find renewed support; the logical precondition of finding support was seeking it.53 For
Rinck, the idea of a chancellor calling for a vote of confidence he hoped to lose was a legal
and logical absurdity.
It was an absurdity, alas, that six of Rinck’s colleagues—and large segments of the
public—were prepared to countenance. Naturally, politicians affected by the case hastened
to proclaim victory.54 President Carstens noted modestly that the Court had vindicated
his and Kohl’s decisions and expressed gratitude that the heated discussion of the matter
could now come to an end.55 Kohl himself was more fustian. The chancellor praised the
Court for contributing ‘constitutional clarity in an impressive fashion’; he added gamely
that ‘[n]‌ow the voter has the word’. In an interview with Die Zeit, Kohl refused even to con-
sider that the Court might have come out the other way.56 Kohl’s election rival, by contrast,
the former SPD justice minister, Hans-Jochen Vogel, called the judgment the ‘terminal
point in a chain of embarrassments’ caused by Kohl and Hans-Dietrich Genscher, leader of
the FDP.57 For his part, Genscher was glad the Court had put an end to SPD suspicions that
the government was manipulating the constitution. Vogel retorted that the case’s real loser
was ‘the putative master tactician’, Genscher himself.58 In short, after the months-long
constitutional drama, it was back to politics as usual. And with good reason: there was an
election on.

45 ibid 66. 46 ibid 67. 47 ibid 68–69. 48 ibid. 49 ibid 110.

50  See ‘Der Bundestagswahl am 6. März steht nichts mehr im Wege’ FAZ (17 February 1983) 1.
51  62 BVerfGE 1 (n 27) 70–108. 52 ibid 72. 53 ibid.
54  See ‘Die Bonner Politiker sehen sich vom Karlsruher Urteil bestätigt. Carstens ruft die Parteien zu einem

fairen Wahlkampf auf’ FAZ (17 February 1983) 2.

55 ibid. 56  ‘Kohl: ‘Ich habe keine Alpträume’’ (n 22) 3.
57  ‘Die Bonner Politiker sehen sich vom Karlsruher Urteil bestätigt. Carstens ruft die Parteien zu einem fairen

Wahlkampf auf’ (n 54) 2.

58  ‘Die Dämme nicht brechen lassen’ (n 28) 17.
 High (Constitutional) Politics 191

Amid the compressed exhilaration of the election, the general public quickly forgot
or forgave the Court’s judgment. 59 But many observers with a more sustained inter-
est in the Court were disappointed. Though most of the Left–Liberal press relished
the judgment’s implicit correctives, 60 the Süddeutsche Zeitung, which for a decade
had been urging the justices to show greater restraint, sighed that the justices had
shirked ‘their proper task’ and ‘bowed’ before the powers that be. 61 Wilhelm Hennis
murmured that, in matters of ‘of high politics, in questions of power’, the Court had
revealed itself as a tribunal ‘that has no sharp teeth’. 62 Constitutional lawyers gen-
erally agreed that the decision was more satisfying politically than legally. 63 Law
professors scolded the Second Senate—sometimes quite sternly—for its deficient
craftsmanship. 64 What scholarly praise the judgment won was not for its legal
soundness. 65 One scholar, for instance, praised its ‘Solomonic’ wisdom. 66 Another
hailed it as ‘a masterpiece of diplomatic jurisprudence’. 67 The common criticism of
the previous decade—that the Court lacked restraint in matters of high political
moment—was nowhere to be heard.
The judgment had less deterrent effect than many of its admirers, and the justices
themselves, had initially hoped. After the decision, Kohl expressed his intention to
seek a constitutional amendment, making it easier for the chancellor to trigger new
elections—the gesture, critics quipped, of a guilty conscience. 68 Kohl’s good intentions,
though, came to nothing. More than twenty years later, in 2005, the SPD chancellor,
Gerhard Schröder, dissolved the Bundestag and triggered new elections under cir-
cumstances nearly identical to those of 1982–83. The Constitutional Court approved
Schröder’s gambit with a nod to its February 1983 judgment. 69 Recently, a Left-wing
critic of the Court cited this 2005 judgment as evidence that the Court’s ‘judges, all
political appointees, rarely baulk at bending to the powers that be, provided the two
major parties are at one on an issue’.70 The 1983 Bundestag Dissolution judgment is
certainly vulnerable to this criticism. Before 1983 was over, however, the First Senate,
in its final judgment under the leadership of Ernst Benda, would provide a dramatic
counter-example.

59 Wirsching (n 6) 40.
60 See ‘Die Dämme nicht brechen lassen’ (n 28) 17; Hans Schueler, ‘Das Wort der Acht’ Die Zeit (18 February
1983); Hans Schueler, ‘Ein halbherziger Richterspruch’ Die Zeit (25 February 1983) 6.
61  Robert Leicht, ‘Die Richter haben sich gebeugt’ Süddeutsche Zeitung (17 February 1983) 4.
62  In ‘Die Dämme nicht brechen lassen’ (n 28) 17.
63  See Norbert Achterberg, ‘Vertrauensfrage und Auflösungsordnung’ (1983) 98 Deutsches Verwaltungsblatt

477; Jost Delbrück and Rüdiger Wolfrum, Die Auflösung des 9. ‘Deutschen Bundestages vor dem BVerfG—BVerfGE
62, 1’ (1983) 23 Juristische Schulung 758; Lutz Gusseck, ‘Bundestagsauflösung kraft Richterspruchs?’ (1983)
NJW 721; Gerhard Schlichtung, ‘Zur Auslegung des Art. 68 GG durch das Bundesverfassungsgericht’ (1984)
39 Juristenzeitung 120; Rudolf W.  Strohmeyer, ‘Die Verfassungsgemäβe Bundestagsauflösung—einige
kritische Anmerkungen zu den Begründungen des Verfassungsgerichtsurteils vom 16. Februar 1983’ (1983)
14 Zeitschrift für Parlamentsfragen 422; Hans-Jürgen Wiegand, ‘Die manipulierte Verfassung’ (1983) 28
Verwaltungsrundschau 333.
64  See Hans Meyer, ‘Anmerkung’ (1983) 36 Die öffentliche Verwaltung 243.
65  See, for instance, Walter Seuffert, ‘Freiheit der Politik und Grenzen des Rechts’ (1983) 108 Archiv des öffen-

tlichen Rechts 403.
66  Hans-Peter Schneider, ‘Sibyllinisch oder salomonisch?—Das Urteil des Bundesverfassungsgerichts zur

Parlamentsauflösung’ (1983) 36 NJW 1529.

67  Günther Schultz, ‘Das Aschermittwoch-Urteil’ (1983) 37 Monatsschrift für Deutsches Recht 365.
68  ‘Die Dämme nicht brechen lassen’ (n 28) 17. 69  114 BVerfGE 121 (2005).
70  Perry Anderson, ‘After the Event’ (2012) 78 New Left Review 53. Anderson was responding to a critic who

had praised the Court extravagantly as ‘one of the last remaining institutions where true judicial thought sur-
vives’. Alain Supiot, ‘Under Eastern Eyes’ (2012) 78 New Left Review 32.
192 Continuity, 1982–1990

B.╇Privacy, personality, and personal data protection

With the Court’s imprimatur, the elections set for 6 March 1983 went forward as planned. As
noted earlier, many observers saw the elections, and the unusual procedure that prompted
them, as part of a broader plebiscitary shift in West German politics. Many pundits pre-
sented the vote itself as a plebiscite, though they disagreed as to its subject. For some it
was a referendum on the NATO double-track decision—the ‘Missiles Election’, they called
it. Certainly, the deployment of Pershing warheads in West Germany (in response to the
Soviet Union’s refusal to eliminate its own middle-range missiles stationed in the East)
was a major theme of the election. More prominent still were questions of unemployment,
pensions, and government debt.71 From the perspective of these more pressing themes, the
elections were indeed a plebiscite on the man who called for them. Helmut Kohl had become
chancellor in a moment of crisis; his announced programme was to resolve the crisis; and in
the March elections, he sought a popular mandate to do just that.
The results allowed Kohl to claim such a mandate. The Union parties won 48.8 per cent
of the vote, an improvement of 4.3 per cent over 1980 and the parties’ best tally since their
epochal triumph of 1957. The SPD’s fortunes were as grim as the Union’s were glowing. The
SPD lost 4.7 per cent vis-à-vis 1980, dropping to 38.2 per cent—the party’s worst showing
since 1961. The FDP suffered too, as everyone predicted it would, losing 3.6 per cent of the
vote and polling its worst result (7 per cent) since before 1969. Still, with nearly 56 per cent
of the combined vote, the new ‘Christian–Liberal’ coalition had a solid majority—stronger,
indeed, than the Social–Liberal coalition ever enjoyed. Most encouraging, the CDU made
welcome inroads among young voters, while the SPD suffered dispiriting losses among
the same group. The drift of young voters away from Social Democracy would continue
throughout the decade. Young voters were increasingly polarized between the CDU and
the Greens. After winning 1.5 per cent of the vote in their 1980 electoral debut, the Greens
now capitalized on pacifist sentiment and discontent with established parties to win 5.6
per cent of the vote—a four-and-a-half point increase that sent the party over the 5 per cent
hurdle and into the Bundestag. For the first time in thirty years, there was a fourth party in
Parliament. Almost immediately, the Greens made their presence felt, emerging as the lone
parliamentary champions of a cause that swept the country’s citizenry and astonished its
political class.
A year before the elections that put the Greens in Parliament, the Bundestag unani-
mously passed a law calling for a national census on 27 April 1983. In addition to counting
the nation’s noses, the proposed census would gather information about citizens’ hous-
ing circumstances and educational attainments, their professional status and workplace
arrangements. The federal government, naturally, would use the data itself; but it would also
share data with districts and municipalities to facilitate local administration and help local
governments correct their records. It had been thirteen years since the last national census
and was, all agreed, high time for another. Back in 1970, the West German citizenry had
sequaciously submitted to a census, as it had done on three earlier occasions. The national
political class had no reason to suspect that the new census would be any different. When
the question came to a vote in the Bundestag, the members yawned in unison, voted yes, and
turned the matter over to an army of technocrats, who with enormous labour and wondrous
expense performed the preliminary research and prepared the material resources needed to
conduct the census the following year.

71╇ Wirsching (n 6) 42–46.

 High (Constitutional) Politics 193

And so things continued, bureaucratic and behind-the-scenes, diligent and dull, for
many, many months. Then, as if by spontaneous combustion, the citizenry erupted. In the
early months of 1983, almost on the eve of the census, the West German people arose and
refused to be counted. Fear of the census, avant la lettre, went viral. Worries about the
power of a well-staffed state to collect, process, electronically save, and endlessly reproduce
personal information became epidemic. All sectors of society, all shades of the political
spectrum, united in protest. ‘My data belong to me!’ screamed buttons and bumper stickers,
echoing the earlier abortion rights campaign. Popular initiatives sprang up everywhere,
urging alarmed citizens to boycott the census or sabotage it with bogus data. The media
joined in sounding the toxin. Newspapers and magazines published detailed descriptions
of the dystopian possibilities inherent in the brave new world of the technological state.
Even the calendar assisted the campaign. No one failed to notice that the census fell on the
eve of the ‘Orwell Year’, 1984.
Needless to say, the popular sensation took the government by surprise. Initially, the coa-
lition’s response was dismissive. Friedrich Zimmermann, the interior minister responsible
for overseeing the census, sneered that opponents of the census stemmed from society’s
‘fringe’. They were a misguided ‘minority of enemies of the state’.72 That position, however,
grew untenable as prominent scientists and writers, artists and engineers joined the opposi-
tion. A growing cadre of lawyers—rarely an anarchic guild—joined the anti-census move-
ment as well. Some of them challenged the census law before the Constitutional Court.
The international press reported rumblings of civil disobedience among the ostensibly
docile and orderly citizens of the Federal Republic.73 As opposition mounted, the govern-
ment protested that it was not prosecuting the census of its own accord—it was merely the
faithful executor of a law passed by its predecessor. But this was a hard sell: the law had
passed unanimously; no Liberal or Christian–Democratic voice had been raised to oppose
it. Only the Greens were not complicit in the law’s passage—a fact out of which the parlia-
mentary newcomers made considerable hay. The Greens paraded as the lone alternative to
the Orwellians. One Green mantra proclaimed: ‘CDU CSU SPD FDP? Nein Danke!’
The high point of popular opposition to the census coincided with the months immedi-
ately following the election in March. Even after the initial surprise receded, Kohl’s govern-
ment never quite took the challenge—including the constitutional challenge—seriously.
Zimmermann was serenely holidaying in the Austrian Alps when the Court convened
oral arguments on 12 April to consider the petitioners’ plea for a preliminary injunction.74
Zimmermann’s undersecretary of state, Horst Waffenschmidt, skipped the hearing as
well. The government sent Eckhart Schiffer, a ministerial director with almost no experi-
ence in constitutional adjudication, to plead the government’s cause.75 Schiffer was visibly
overwhelmed and mortifyingly underprepared. The Süddeutsche Zeitung reported that as
Schiffer stood at the lectern fielding penetrating questions from the justices, he had ‘hardly
anything with which to counter’.76
On 13 April 1983, in a judgment of less than five printed pages, all of the judges on the First
Senate agreed that at least parts of the census must be enjoined—particularly the provisions
for delivering data to local administrators.77 ‘If the temporary preliminary injunction is not

72  These comments were reported endlessly in the press. See, e.g., ‘Der Staat darf nicht alles wissen’ Die Zeit

(23 December 1983) 7.

73  See ‘A Census as Political Challenge’ Washington Post (9 April 1983) A18. The International Herald Tribune

report was noted in ‘Ohne Drohgebärde, ohne Angst’ Der Spiegel (18 April 1983).
74  See ‘Ohne Drohgebärde, ohne Angst’ Der Spiegel (18 April 1983) 17. 75 ibid.
76  See Helmut Kerscher, ‘Aufgeschoben ist nicht aufgehoben’ Süddeutsche Zeitung (14 April 1983) 4.
77  64 BVerfGE 67 (1983).
194 Continuity, 1982–1990

issued’, the Senate wrote, ‘but the complaints later prove well-founded, the execution of the
law will have injured all citizens required to participate’—everyone in the country, that is—
‘in their fundamental rights’.78 Five of the eight judges thought the census as a whole must
be enjoined. The risks posed by the modern capacity to store and reproduce data electron-
ically were too great for the data to be gathered before the constitutionality of its collection
had been formally assessed.79 The census would have to await the Senate’s judgment on the
merits.
Rumour had it that the three judges favouring only a partial injunction were Werner
Böhmer, Hans Joachim Faller, and Dietrich Katzenstein.80 This meant, rumours contin-
ued, that the decisive vote against the full census had been cast by Ernst Benda, the chief
justice and ostensibly one of the First Senate’s conservatives.81 Whether or not Benda cast
the deciding vote, the media made him the hero of the day. In its 18 April 1983 issue, Der
Spiegel ran the headline, ‘Bonn Counted Out’, over a picture of Benda in his scarlet robes,
arms folded and unsmiling, powerful and implacable. Behind Benda was the text of the cen-
sus law, unceremoniously shredded in two. Benda, Der Spiegel reported, who since joining
the Court had drifted steadily from the dogmas of his party, now had no hope of becoming
federal president or even mayor of Berlin. But as chief justice, Benda seemed determined
to go out in style.82 True, the Court made clear that its preliminary injunction would not in
any way prejudice its judgment on the merits. But close observers knew that the Court had
never enjoined a law that it did not later, at least in part, annul.83
The politicians who passed the law fell over themselves in reciprocal attributions of blame.
All parties insisted that the justices had slapped the face of somebody else. Zimmermann,
for weeks vocally determined to hold the census on schedule, had the temerity to crow that
‘the old Schmidt government’ had once more failed in Karlsruhe.84 Otto Wiesheu, general
secretary of the CSU—a party whose chairman, Franz Josef Strauβ, had advocated post-
poning the census during the recent elections—called the judgment ‘a resounding slap’ in
the face of Hans-Jochen Vogel, the opposition leader who, as justice minister, had helped
craft the law.85 Holger Börner, the SPD premier of Hesse whose 1978 philippic against the
Court we encountered in the last chapter, countered that the slap was really directed at
Zimmermann.86 Only the Greens could cackle with a clear conscience. That party’s national
board reported a ‘resounding slap in the face of data fetischists’ of all partisan stripes.87
Some critics whispered that the Court’s own conscience was not clear—that the judgment
was a conspicuous display of independence designed to counter perceptions that the Court
had capitulated to political pressure in the Bundestag Dissolution case.88 Writing for the
Frankfurter Allgemeine Zeitung, Friedrich Karl Fromme suggested that the First Senate had
been seduced by a popular sensation. In an editorial entitled ‘Defeat of the State’, Fromme
fretted that the Court had ‘burdened itself with a matter whose constitutional meaning is
supremely dubious’. The opponents of the census had misused the Constitutional Court,
and the Court had ‘let itself be misused’.89 The general public, on the other hand, was jubi-
lant (barring a few boycott leaders who worried that the decision would still the wind in the
movement’s sails). It was the most spectacular preliminary injunction the Court had ever
issued.

78 ibid 70. 79 ibid 70–72.
80  See ‘Die Volkszählung findet nicht statt. Karlsruhe verordnet eine Verschiebung’ FAZ (14 April 1983).
81  ‘Ohne Drohgebärde, ohne Angst’ (n 74) 17. 82 ibid.
83  ibid. See also ‘Die Volkszählung findet nicht statt. Karlsruhe verordnet eine Verschiebung’ (n 80).
84  ‘Die Bonner Parteien überrascht’ FAZ (14 April 1983) 2.
85  In ‘Ohne Drohgebärde, ohne Angst’ (n 74) 17. 86 ibid. 87 ibid. 88 ibid.
89  Friedrich Karl Fromme, ‘Niederlage des Staates’ FAZ (14 April 1983) 1.
 High (Constitutional) Politics 195

The judgment on the merits was no less dramatic. On 15 December 1983—nearly eight
months after the date on which the census was originally supposed to take place and now
on the very threshold of the ‘Orwell Year’—a unanimous Senate quashed the law’s most
controversial sections.
The explanation was as striking as the outcome. To begin with, the judgment featured
what one critic called a ‘preamble’ of ‘supremely questionable’ legal relevance.90 The social
message, however, was clear, and in many quarters celebrated.91 Against Zimmermann’s
assertion that opposition to the census was an anarchic fringe movement, the Senate noted
that the proposals had spread anxiety ‘even among those sectors of the population which
as loyal citizens respect the right and duty of the state to acquire the information neces-
sary for rational and well-planned state action’.92 The public’s fears, a sympathetic Senate
added, were entirely understandable. ‘The possibilities of modern data processing are by
now transparent largely to experts only’, the justices wrote, ‘and can engender in the citizen
fear of an uncontrollable personal profile, even when the legislator asks only for such data
as are necessary and proper’.93 The enormous anxiety provoked by the proposed census, the
‘preamble’ concluded, might have stemmed from the fact that even experts—some of whom
played a prominent role in the public debate and in the Court’s oral arguments—were con-
vinced that the proposal paid insufficient attention to constitutional concerns.94 As soon
became clear, the justices shared this conviction.
The Senate dismissed some parts of the complaint out of hand. That the census required
information about citizens’ religious affiliation did not infringe their religious freedom, nor
did requiring information about their housing arrangements offend the inviolability of the
home.95 And it went almost without saying that requiring citizens to complete census forms
did no violence to the freedom of speech.96
The core of the complainants’ case, however, hung on Article 2 GG’s personality guar-
antees in connection with Article 1’s shield for human dignity. Here the decision broke
new ground. The personality right, the justices held, must be read in light of modern
developments—including, not least, modern technological developments. The per-
sonality right encompassed an individual’s capacity, consistent with the principle of
self-determination, to decide when and how her personal data would be revealed. In light
of current and future conditions of automatic data processing, this capacity deserved ‘a
special measure of protection’.97 Thus was born, or at any rate christened, the constitutional
‘right to informational self-determination’.98 It was an inelegant moniker for a necessary
freedom.99 Any limitations on this right, the Senate stressed, must accord with the com-
mand of legal clarity and the principle of proportionality. Ordinary citizens must be able
to recognize the fact, appreciate the extent, and understand the purpose of the intrusion.100
Crucial provisions of the census law didn’t meet this standard. At the core of their ana-
lysis, the justices distinguished between data linked to persons (personbezogen) and purely
statistical data (statistikbezogen). The latter were less constitutionally problematic than the
former. The right to informational self-determination required government data collec-
tors to ‘anonymize’ data as soon as possible. The census law did so only inadequately. In
Germany, individuals moving into a community are required to register their domicile
with the local authorities (recall the opening scene of Kafka’s The Castle). The 1983 census

90  Ulrich Mükkenberger, ‘Datenschutz als Verfassungsgebot. Das Volkszählungsurteil des

Bundesverfassungsgerichts’ (1984) 17 Kritische Justiz 1, 1 fn 5.
91  See ‘Schwere Schlappe’ Der Spiegel (19 December 1983) 19. 92  65 BVerfGE 1, 3 (1983).
93 ibid 4. 94 ibid. 95 ibid 39–40. 96 ibid 40. 97 ibid 41–42. 98 ibid 44.
99  See ‘Schwere Schlappe’ Der Spiegel (19 December 1983) 19. 100  65 BVerfGE 1 (n 92) 44.
196 Continuity, 1982–1990

would have made housing information—with names—available to local administrators

for the purpose of correcting domicile registration books. In the eyes of the First Senate,
this was an impermissible mixing of personal and statistical data.101 The justices also con-
demned other provisions that would have allowed the central government to share census
data with local or state administrators. These provisions were offensive because the infor-
mation, in some cases, would be sent with names attached102 and because, in other cases,
the concrete purpose of the transfer was insufficiently clear.103 Some of the stated purposes,
the judges wrote, were ‘so imprecise that they could be adduced to cover the most dispar-
ate of activities’.104 Thus, in few words, the Senate summarized the essence of citizen fears
about the census. And thus, in a soft-spoken judgment, the judges quashed the law’s most
alarming provisions.
‘Das war es’, said Chief Justice Benda at the close of his reading—‘That’s all’. ‘Auf wiederse-
hen’, he added, but ‘no more for me in this hall’.105 It was the last judgment announced by the
Court’s fourth president. Benda’s twelve-year tenure as chief justice had been tumultuous.
His Court was often divided internally and embattled politically. But here, for Benda’s swan
song, the First Senate’s judgment was unanimous.
Rarely, if ever, has a judgment of the Constitutional Court been so wildly, raucously
popular. Within sixteen months, a reporter for the Frankfurter Rundschau referred to
‘all the reports about and encomiums to the Karlsruhe judgment, which in the meantime
already fill small libraries’.106 The panegyric, of course, was not universal. The Frankfurter
Allgemeine Zeitung played down the judgment’s significance, noting that the Court had
upheld the essence of the census questionnaire. The paper asked whether the furor sur-
rounding the proceeding hadn’t been ‘much ado about nothing’.107 Friedrich Karl Fromme
groused in a separate review that the First Senate had ‘invented’ a ‘new fundamental
right’108—a much-repeated formulation describing what an alarmed law professor called ‘a
crisis signal for our constitutional consciousness’.109
The Left–Liberal weeklies provided a better barometer of the popular mood. Der Spiegel
chortled that the dominant parties, collectively, had received a ‘severe slap’.110 Die Zeit cheered
that ‘the state must not know everything’.111 The judgment would join ‘a long line of landmark
decisions that could stand under the motto: ‘In doubt, for freedom!’’112 Reinhold Baumann,
the federal ombudsman for data protection, called the judgment ‘the most important event
in the history of data protection’.113 This might not be quite the exaggeration it seems to be at
first blush. The judgment, and the popular uprising that led to it, helped launch the European
data protection movement. It helped shape a consciousness and an ethic that, for instance,
continue to drive divergent American and German attitudes towards data protection three
decades later. (It contains, for example, the deep seeds of recent rows over NSA spying.)
The decision also marked an axial moment in the history of the Constitutional Court. It
was an aggressive vindication—and initial recognition—of a fundamental right. It cast the
Court in its idealized role as guardian of the people’s constitutional protections and it left

101 ibid 64. 102 ibid 68. 103 ibid 66. 104 ibid 68.

105 ‘Volkszählungen generell zulässig Schutz gegen unbegrenzte Daten-Weitergabe’, FAZ (16 December
1983) 1.
106  H.P. Bull, Frankfurter Rundschau (9 April 1985).
107  ‘Ein neues Grundrecht’ FAZ (16 December 1983) 1.
108  Friedrich Karl Fromme, ‘Ein neues Grundrecht ist erfunden’ FAZ (17 December 1983) 12.
109  Peter Krause, ‘Das Recht auf informationelle Selbstbestimmung—BVerfGE 65, 1’ (1984) 24 Juristische

Schulung 268.
110  ‘Schwere Schlappe’ Der Spiegel (19 December 1983) 19.
111  ‘Der Staat darf nicht alles wissen’ Die Zeit (23 December 1983) 7. 112 ibid.
113  In ‘Schwere Schlappe’ Der Spiegel (19 December 1983) 19.
 High (Constitutional) Politics 197

leaders of the major political parties looking out of touch. It was a triumphant coda to the
era of confrontation, a transitional prelude to a period of continuity, stability, and unprec-
edented public regard.

C.╇Personnel changes 1983
Ernst Benda was not the only justice to leave the Court in the days after the Census judg-
ment. The terms of Benda’s First Senate colleagues Werner Böhmer and Joachim Faller had
also ended, as had those of Rudi Wand and Joachim Rottmann of the Second Senate. The
entering class of 1971, much criticized for its inclusion of a member of Parliament from each
major party, was now gone. The dozen years in which Benda presided over the First Senate,
and in which Rottmann and Martin Hirsch114 sat on the Second, were the most eventful
since the Court’s inaugural crises.
In June 1981, the mercurial Hirsch—who for months leading up to his retirement had
made headlines with extrajudicial pronouncements that led many to question his under-
standing of the judicial role—had been replaced by Ernst Gottfried Mahrenholz, a former
student of Gerhard Leibholz with long experience as a lawyer, administrator, and legisla-
tor in Lower Saxony.115 On 20 December 1983, five new justices joined the Court, and the
Second Senate’s Wolfgang Zeidler—whose appointment as vice president in 1975 so roused
the ire of Hirsch—became the first Social Democrat to serve as chief justice.
The new quintet mixed political experience and academic star-power, though there was
more of the latter than the former. The two ‘politicians’ in the group—Roman Herzog,
the new vice president, and Hans Hugo Klein—had previously been professors of public
law: Herzog before serving as Baden-Württemberg’s educational (1978–80) and interior
(1980–83) minister, Klein before becoming a CDU member of the Bundestag in 1972. Herzog
and Klein were both nominated by the CDU; they replaced, respectively, Benda and Wand.
The CDU also nominated Franz Niedermeier, chairman of the Federal Administrative
Court, to replace Werner Böhmer, the Court’s property law expert and another former
administrative judge. The FDP nominated Johann Friedrich Henschel, a practising lawyer
recently appointed to the Federal Court of Justice, to replace Hans Joachim Faller. The SPD,
having secured the chief justiceship for the remaining four years of Zeidler’s term and hav-
ing appointed Mahrenzholz in 1981 and Hermann Heuβner in 1979, nominated just one
justice in 1983: the prolific public law professor, Ernst-Wolfgang Böckenförde.
Some in the SPD had hoped to tap Böckenförde for a long time. In November 1975,
Martin Hirsch had sharply rebuked the party leadership for not nominating ‘the comrade
[Genosse] Prof. Böckenförde’ and thus squandering ‘the long-awaited opportunity to pit
against Prof. Geiger an outstanding scholar of our stripe’—an omission that could ‘not be
corrected in the foreseeable future’.116 In fact, in 1975, the SPD had proposed Böckenförde

114╇In Hirsch’s case, it was ten years.

115╇For criticism of Hirsch, see ‘Ein Parteiamt für Verfassungsrichter Hirsch’ FAZ (6 March 1980) 5; Hanno
Kühnert, ‘Hirsch: Ein Richter muβ seine Stimme erheben’ Frankfurter Rundschau (4 April 1981) 4; ‘CSU schilt
Martin Hirsch’ Frankfurter Rundschau (25 April 1981) 1; ‘Ein Verfassungsrichter hat die Pflicht, seine Stimme zu
erheben’ Frankfurter Rundschau (25 April 1981) 14; ‘Wieder Hirsch’ Die Welt (25 April 1981); Sepp Beranek, ‘Was
Martin Hirsch vor 21 Jahre sagte’ Süddeutsche Zeitung (16 May 1981); D Haucke, ‘Politisierende Richter’ Die Welt
(16 May 1981); ‘Empörung in Karlsruhe über Richter Hirsch’ Die Welt (19 May 1981); Rainer Klose, ‘BGH weist
Verfassungsrichter zurecht’ Süddeutsche Zeitung (19 May 1981); Robert Leicht, ‘Richterliche Selbstdarstellung’,
Süddeutsche Zeitung (19 May 1981); ‘Bundesanwälte: Hirsch beleidigt Richter Kuhn’, Die Welt (21 May 1981);
Hans Schueler, ‘Knast für Schmierer?’ Die Zeit (22 May 1981) 6; Olof S Masch, ‘Ein gewisser Hirsch’ Der Spiegel
(15 June 1981) 10; ‘Ein Vollblutpolitiker’ FAZ (27 June 1981) 10.
116╇ Hirsch to Willy Brandt (4 November 1975), Friederich-Ebert-Stiftung, Bonn (Nachlass Martin Hirsch, 1/

MHAC000137).
198 Continuity, 1982–1990

as a ‘neutral’, but had not won the agreement of the other parties.117 His name was aired again in
1979 and 1981.118 He finally joined the Court at the end of 1983—six years after Geiger’s retire-
ment, two years after Hirsch’s.
Both Böckenförde and Klein had striking academic pedigrees. Klein, the Court’s first
Karlsruhe native, had written both of his doctoral theses (dissertation and Habilitation) under
Ernst Forsthoff, a postwar pillar of the Schmitt school. Böckenförde had deep personal ties
to Schmitt himself. After 1958 Böckenförde, still in his late twenties, became Schmitt’s most
important editor.119 In February 1959, Schmitt gave his famous ‘Tyranny of Values’ lecture at
a conference that Böckenförde had persuaded him to attend.120 One student of Schmitt’s post-
war influence has called Böckenförde ‘probably Schmitt’s most creative postwar student’.121
Like others of Schmitt’s pupils, Böckenförde criticized the tendency of state theorists in the
Federal Republic to treat the constitution itself as sovereign. Böckenförde, by contrast, ‘empha-
sized that the constitution had to be preceded by—and remain based on—a state’.122 Moreover,
Böckenförde ‘saw the people, rather than the Constitutional Court and its dedication to values,
as the ultimate source of legitimacy and as the guardian of the constitution’.123 Bӧckenfӧrde
was, and remains, most famous for a single sentence: ‘the liberal, secular state lives off precon-
ditions which it cannot itself guarantee’.124
In 1962, Böckenförde helped found the periodical Der Staat, which was designed at least
in part to serve as a Schmittian counterweight to the Smendian Archive of Public Law, edited
at the time by Justice Gerhard Leibholz. Leibholz, who in a 1976 eulogy for Smend had
denounced the adoption of ‘tyranny of values’ rhetoric by thinkers on the political Left,
died the year before Böckenförde joined the Senate on which Leibholz once sat. By then,
the labels ‘Schmittian’ and ‘Smendian’ had ceased to divide the public law academy. But
with the addition of Böckenförde and Klein, the Court acquired a Schmittian link it never
had before. It is unfair, however, to saddle students with the burden of their teachers. As a
constitutional justice, Böckenförde became something of a liberal lion, writing a series of
powerful dissents that made him an unforeseen hero of the left-of-centre press.
Aside from Franz Niedermeier, all of the new justices had been born in the 1930s. At
a retirement celebration for outgoing judges, Werner Böhmer, a unit commander during
the Second World War, noted that the number of justices who had experienced dictator-
ship and war firsthand was growing ever smaller.125 As of 1 January 1984, roughly half the
justices belonged to a generation later dubbed the ‘45ers’, a generation whose self-appointed
spokesman Jürgen Habermas helped launch an unprecedented public debate about the
uniqueness and the legacy of the Nazi past. In a 1986 essay, Habermas claimed as his gen-
eration’s proudest achievement the anchoring of the Federal Republic within the political
traditions of the liberal West. Habermas asserted that the only brand of patriotism avail-
able to post-Auschwitz Germans was ‘constitutional patriotism’.126 Habermas gave the

117 See ‘Akenvermerk für Herrn Landesvorsitzenden Dr.  Franz Josef Strauβ’ (19 June 1975), Hanns-

Seidel-Stiftung, Munich (Nachlass Richard Jaeger, B: 1).

118  See ‘Arndt, Böckenförde oder wer sonst tritt die Nachfolge von Verfassungsrichter Hirsch an?’ FAZ

(24 December 1980) 4.

119  See Reinhard Mehring, Carl Schmitt: Aufstieg und Verfall (CH Beck 2009) 531–32. 120 ibid 519.
121  Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Postwar European Thought (Yale University Press

2003) 72.
122 ibid 67. 123 ibid 72.
124 Ernst-Wolfgang Bӧckenfӧrde, ‘Die Entstehung des Staates als Vorgang der Sӓkularisation’ in

Ernst-Wolfgang Bӧckenfӧrde, Recht, Staat, Freiheit:  Studien zur Rechtsphilosophie, Staatstheorie und
Verfassungsgeschichte (Suhrkamp 1991) 112 (italicized in the original).
125  See Werner Böhmer, ‘Abschiedsworte’ (13 October 1983), in Friedrich-Ebert-Stiftung, Bonn (Nachlass

Walter Seuffert, 1MHAC/000018).

126 Jürgen Habermas, ‘Eine Art Schadensabwicklung. Die apologetischen Tendenzen in der deutschen

Geschichtsschreibung’ in Rudolf Augstein, Karl Dietrich Bracher, and Martin Broszat (eds), ‘Historikerstreit’.
 High (Constitutional) Politics 199

phrase ‘constitutional patriotism’ a cosmopolitan, post-national flavour.127 Seven years

earlier, Dolf Sternberger injected the phrase into West German political discourse on a
more national note, with specific emphasis on the ideals and institutions of the Basic Law.128
Early in the chancellorship of Helmut Kohl, some of those institutions—the classically
political institutions—became embattled as never before. In the public’s estimation, the
Constitutional Court benefited by contrast.

D.╇The Flick affair
Part of the backdrop to Habermas’s essay, and to the remarkable public debate on recent
German history which followed, was Kohl’s decision, in May 1985, to accompany US
President Ronald Reagan on a visit to the soldiers’ cemetery in Bitburg—resting place for sol-
diers of the Wehrmacht, but also for members of the Waffen-SS. The Bitburg visit unleashed
an international storm of disapproval. It was neither the first nor the most controversial of
Kohl’s early gaffes. Controversy swirled around the chancellor from the moment of his elec-
tion, and it hovered, like a dark cloud, over his early years in office. Sometimes, as with the
visit to Bitburg, he placed his feet on forbidden soil; on other occasions, he placed his foot
in his mouth. In January 1984, he spoke (before the Israeli Parliament of all bodies) of the
‘mercy of a late birth’. In October 1986, he compared Mikhail Gorbachev’s public relations
prowess to that of Josef Goebbels.
Worse than the blunders—however callous or colossal—were the scandals. These, sur-
rounding a chancellor who upon taking office promised a ‘spiritual–moral turnaround’,
seemed unforgivable. In its coverage of them, an already hostile punditry proved merciless.
The first scandal involved the premature resignation of a four-star general, Günter
Kieβling, under pressure from Manfred Wӧrner (CDU), Kohl’s defence minister, and in
the face of secret accusations of homosexuality. Wörner’s sources were shady. The accusa-
tions were later discredited and Kieβling was rehabilitated. But Kohl stood by his defence
minister all the while. Even after Kieβling’s exoneration, Kohl rejected Wörner’s offer to
resign. The second scandal ultimately required Kohl’s testimony under oath before a parlia-
mentary investigative committee. Later, when the inaccuracy (or duplicity) of his testimony
became clear, Kohl became the first sitting chancellor subjected to criminal prosecution.
This scandal bore the name of Flick. The Flick Corporation was a giant conglomerate with
assorted interests. During the 1970s, the company made headlines with its sizeable—and
questionable—donations to political parties. The most dubious donations followed the
company’s 1975 sale of the automotive giant Daimler-Benz for 1.9 billion DM. The sale was
taxable in its entirety, but Flick fought doggedly to shield it from taxation. For the most part,
the corporation succeeded. West Germany’s labyrinthine tax code empowered the federal
finance minister to shield from tax liability sums destined for a ‘reinvestment’ favourable
to the national economy. With separate petitions in 1976, 1979, and 1981, Flick secured
reinvestment certificates amounting to some 1.45 billion DM. In all, some 1.6 billion DM
of the Daimler sale went untaxed. During negotiations that lasted several years, Flick
sent enormous sums of cash, most of it sealed in inconspicuous envelopes, to politicians
in Bonn. Jürgen Friderichs and Otto Graf Lambsdorff, the FDP economics ministers, and

Die Dokumentation der Kontroverse um die Einzigartigkeit der nationalsozialistischen Judenvernichtung (Piper
1987) 83.
127╇ For an admirable study of the concept, see Jan-Werner Müller, Constitutional Patriotism (Princeton

University Press 2007).
128╇ See Dolf Sternberger, Verfassungspatriotismus (Insel 1982).
200 Continuity, 1982–1990

Hans Matthöfer, the SPD minister of finance, were especial beneficiaries. But cash flowed to
politicians in all major parties.
It was all, of course, illegal—a violation of tax laws, to be sure, but also of party finance
laws, which required that donations in excess of 20,000 DM be made public. The parties,
as it happened, had been quietly flouting those laws for years. The Constitutional Court’s
party-finance edicts, they reasoned, were simply unworkable. Politicians came to regard the
systematic evasion of these fiats as a kind of customary right.129 As the Flick affair unfolded,
however, the public didn’t quite see it that way. Neither did the Bonn prosecutor’s office.
In 1981, public prosecutors formed a special commission to investigate the affair. In short
order, roughly 1,800 affected individuals were investigated for tax evasion. Most prominent
among them were Lambsdorff, the incumbent economics minister, and Friderichs, his pre-
decessor. In December 1982, Bonn prosecutors charged Lambsdorff and Friderichs, along
with two former Flick leaders, not merely with tax violations, but with active and passive
bribery.130
The charges against Lambsdorff swept the Christian–Liberal coalition into the scandal.
In May 1983, at the behest of the SPD parliamentary faction, the Bundestag formed its own
investigative committee. The committee’s purpose was to determine whether the Flick
Corporation had influenced past decisions of members of Parliament, cabinet ministers,
administrative officers, or other officials in the Federal Republic, and to scrutinize decisions
favourable to Flick made by successive economics ministers. To that end, the committee
asked the economics and finance ministries for copies of all relevant documents. The minis-
tries complied only partially. The documentary record they submitted contained crater-like
gaps—entire pages rendered illegible or blacked out entirely. The ministries explained that
the holes in the record covered sensitive tax information, the secrecy of which was guaran-
teed by law. In response, the SPD and Green parliamentary factions, together with the rep-
resentatives of these two parties on the investigative committee, asked the Constitutional
Court to order the ministries to supply the full record.131 By withholding the documents,
the complainants alleged, the ministries had violated the investigative committee’s rights
under Article 44 GG, which governed parliamentary investigations.
In a judgment dated 17 July 1984, a unanimous Second Senate agreed.132 Article 44(1)
GG, the Senate noted, empowered the parliamentary investigative committee ‘to collect
for itself the evidence necessary’ to fulfil its purpose. This language allowed the commit-
tee itself to decide what evidence was necessary, even when it sought documentary evi-
dence from the federal government.133 This construction was confirmed by considerations
of constitutional structure.134 The Basic Law’s separation of powers envisioned occasional
parliamentary review of the executive; the Court must construe the constitution so as to
make that review effectual.135 True, the committee’s power to compel delivery of docu-
ments was limited by fundamental rights concerns.136 But in this case, those concerns were
comparatively weak.
To begin with, the right of tax confidentiality was a statutory rather than a consti-
tutional right, though it merited some constitutional protection in connection with
dignity, personal development, and property.137 This protection meant that infringe-
ments of confidentiality must serve a preponderant general interest and respect the

129  See Helmut Kohl, Erinerrungen 1982–1990 (Droemer HC 2005) 298.

130  See Wirsching (n 6) 66–67.
131  Committee members from the coalition party declined to join the complaint, betraying, many thought, a

lamentable lack of parliamentary self-assurance. See ‘Flick: Leere Blätter’ Der Spiegel (23 July 1984) 21.
132  67 BVerfGE 100 (1984). 133 ibid 128. 134 ibid 129. 135 ibid 130. 136 ibid 133.
137 ibid 142.
 High (Constitutional) Politics 201

proportionality principle.138 But in this case the countervailing general interest was
overwhelming.139 The investigation involved accusations against political parties, gov-
ernment ministers, officers of government ministries, and members of the Bundestag.
Statutory guarantees of tax secrecy made an exception for cases of pressing public interest,
such as countering the spread of false statements that might undermine the trustworthiness
of public administrators. Certainly such an exception applied to an investigation prompted
by widespread doubts about the reliability of the executive branch—doubts which threat-
ened to convulse the nation’s ‘tax morale’.140 If executive-branch officers thought some
documents too sensitive for delivery, they must explain to the Bundestag investigative
committee—in a secret session if necessary—why they thought so. In addition, executive
officers invoking confidentiality must provide a comprehensive and detailed report of the
kinds of documents and the nature of the information withheld. Perhaps they should even
arrange for the investigative committee’s chairman to see the documents for himself.141 In
the case before the Court, the relevant ministries had already made the documents in ques-
tion available to the courts and criminal investigators. In matters of critical public moment,
what was safe to share with prosecutors was safe to share with Parliament—‘the unmedi-
ated representative organ’ of the People.142
The Frankfurter Allgemeine Zeitung reported the judgment as a ‘strengthening of
Parliament’.143 Der Spiegel, employing its favourite metaphor, called it ‘yet another slap’
for the cabinet of Helmut Kohl—‘a severe political slap’ to the federal government for the
second time in just a few months.144 Peter Struck, an SPD parliamentarian, also spoke of ‘a
mighty political slap in the face’ for the Kohl government.145 Hans Schueler struck a similar
note in Die Zeit. The Kohl government, he wrote, ‘could no longer claim that it fared better
before the Federal Constitutional Court than its Social-Liberal predecessors under Willy
Brandt and Helmut Schmidt’.146 Schueler, who nearly despaired of the Court during the
1970s, now sang its praise: ‘Despite all partisan efforts to influence the staffing of the two
Karlsruhe senates’, he wrote, ‘there are still independent judges in Karlsruhe, who, regard-
less of their political inclinations, without consideration of those who placed them in office,
take their review assignment vis-à-vis the executive seriously and who don’t allow them-
selves to be misled’.147
The Court’s display of independence was especially momentous against the backdrop
of the scandal that gave rise to it. In the aftermath of the Flick affair, many West Germans
concluded that their rulers were for sale. Many saw in the Court’s judgment against exec-
utive privilege and in favour of oversight and transparency a virtuous contrast with the
political branches. Public trust in the Court approached record levels; trust in politi-
cians careened in the opposite direction. This was especially so after the coalition par-
ties launched a ham-fisted effort to clean the slate of scandal and solve the problem of
party finance by promulgating a general amnesty. Polls showed that roughly a quarter
of those surveyed had a worsened opinion of political parties after the ‘amnesty affair’
had compounded the offences of the Flick affair.148 By contrast, a 1984 Allbus149 survey
showed popular trust in the Court to be at an all-time high. Nearly 70 per cent of those

138 ibid 143. 139 ibid 145. 140 ibid 141. 141  ibid 138–39. 142  ibid 145, 141.

‘Stärkung des Parlaments’ FAZ (18 July 1984) 2.

143  144  ‘Flick: Leere Blätter’ (n 131) 21.
145 In ibid. 146  Hans Schueler, ‘Schuβ vor den Bug’ Die Zeit (20 July 1984) 1. 147 ibid.
148  Wirsching (n 6) 74.
149  Allgemeine Bevölkerungsumfrage der Sozialwissenschaften—a national institute for social science data

production.
202 Continuity, 1982–1990

surveyed expressed ‘rather or very great trust’ in the Court, while less than 14 per cent
reported �l ittle or none.150 This figure declined gradually over the course of the decade, but
it remained above 60 per cent.151 Through reunification and beyond, public trust in the
Court dwarfed trust in other state institutions; only the police and the federal president
rivalled the Court in the public’s esteem.
The Flick affair ended in February 1987 with the acquittal of Lambsdorff and Friderichs
on the bribery charges (they had been convicted earlier for the lesser offence of tax fraud).
A year earlier, Koblenz prosecutors dropped charges against Kohl for lying under oath,
reasoning that the chancellor might have misunderstood the crucial question he answered
falsely. The Kohl government survived the crisis, but the affair had taken its toll and exacted
its victims. One victim was Rainer Barzel, president of the Bundestag and Kohl’s predeces-
sor as CDU chairman, who resigned in October 1984 amid revelations that he had received
large sums from Flick in 1973, ostensibly for consultation work but actually as compensa-
tion for surrendering the party chairmanship to Kohl.

E.╇Peace movement and Pershing missiles

In light of the serial snafus and scandals of its early years, it comes as a surprise that
Kohl’s chancellorship lasted longer than any other, Adenauer’s included, in the history of
the Federal Republic. The explanation for Kohl’s durability, notes the historian Andreas
Wirsching, requires averting one’s gaze from the fog of scandal and the smoke of satire
and focusing on the substance of Kohl’s policy decisions.152 As was the case with Kohl’s
forebears—with Adenauer, for instance, and with Willy Brandt—the chancellor’s weighti-
est decisions dealt with foreign affairs.
Never, after taking office in October 1982 and winning the election of March 1983,
did Kohl or his cabinet waver in their resolve to resume Schmidt’s support for the NATO
double-track decision. In the wake of the double-track decision, there followed a series of
seemingly annual crises in the chilling of the Cold War: the Soviet invasion of Afghanistan
in 1979; the Western boycott of the Moscow Olympics in 1980; General Jaruzelski’s decla-
ration of martial law in Poland in response to the Solidarity movement’s agitation in 1981.
This last event followed by less than two weeks the opening of the disarmament negotiations
offered in the double-track decision. Partly as a result, the negotiations led nowhere. By the
time Kohl came to power, it was clear that NATO was headed down the 1979 decision’s more
hawkish track. The deployment of cruise and Pershing missiles in the Federal Republic was
only a matter of time.
As of the March 1983 elections, time was running short and popular opposition to the arms
buildup was growing strident. More than anything else, it was the peace movement (really an
astonishing convergence of diverse movements) that propelled the Greens into Parliament.
The movement escalated dramatically after the election. Its adherents came from all sectors
of society and bore all brands of ideology. It harboured Christians and communists, atheists
and environmentalists, women and workers, students and scientists. To some degree, the
peace movement overlapped with the anti-census movement. But the fight against atomic
buildup exceeded the cry for data protection. The forebodings of the anti-census movement

150╇In Hans Vorländer and André Brodocz, ‘Das Vertrauen in das Bundesverfassungsgericht.
Ergebnisse einer repräsentativen Bevölkerungsumfrage’ in Hans Vorländer (ed), Die Deutungsmacht der
Verfassungsgerichtsbarkeit (VS Verlag für Sozialwissenschaften 2006) 259, 264.
151╇ibid. 152╇ibid 79.
 High (Constitutional) Politics 203

were dystopian; the nightmares of the peace movement apocalyptic. The former took its allu-
sive inspiration from Orwell; the latter from the book of Joel. The prospect of the Federal
Republic becoming a theatre of nuclear war—a war that many worried might be triggered
by misinformation or a false alarm—haunted millions. Hundreds of thousands took to the
streets in protest, resurrecting the watchwords of a quarter century before. The ‘fight against
atomic death’ resumed.
On 4 April 1983, nearly 500,000 people took part in Easter Day peace marches around
the country. On 22 October, nearly a million people joined in coordinated demonstrations,
including roughly 200,000 that joined hands in a ‘human chain’ stretching nearly a hundred
kilometres from Stuttgart to Neu-Ulm. Anti-deployment activists called for a plebiscite
on the matter, but a binding referendum was constitutionally impossible. Justice Helmut
Simon of the Constitutional Court’s First Senate, however, proposed a non-binding, con-
sultative plebiscite—a suggestion eagerly embraced by many in the peace movement but
a source of discomfiture for Simon’s judicial colleagues. Nothing came of the proposal,
and the extraordinary public debate stretched on for months. Proponents of deployment
accused demonstrators of indulging in a utopian naïveté that wrongly usurped the banner
of peace. The desire for peace, proponents insisted, was precisely what made deployment
necessary. The lessons of history (most poignantly the lessons of German history) cried
out that dictators, to be stopped, must be confronted. But history also showed, antagonists
retorted, that weapons, once forged, will one day be employed.153
Throughout the debates and protests, Kohl’s coalition was unbending. The government
saw the deployment of mid-range missiles in the Federal Republic as the proper response
to Soviet intransigence. Deployment gave the government the chance to confirm the coun-
try’s loyalty to its most powerful ally, the United States. Kohl’s cabinet sustained the NATO
powers’ decision to move forward with the deployment. On 21 November 1983, the gov-
ernment announced that the deployment would proceed. A Bundestag majority endorsed
this declaration the following day. The Greens, however—the most vocal parliamentary
champions of the anti-deployment movement—dissented. And they took their dissent to
Karlsruhe, complaining that the government’s declaration violated the Bundestag’s rights
under Article 24(1) GG and 59(2) GG to participate in existential questions of foreign policy.
Article 24 GG permitted the transfer of sovereign rights to international entities only
‘through statute’, and Article 59 required statutory approval for treaties affecting the
political relationships of the Federal Republic. The Greens contended that the govern-
ment’s unilateral deployment decree violated both these provisions. At the same time, the
Court was inundated with a flood of individual complaints against the declaration. These
complainants contended that the deployment violated their rights, under Article 2 GG, to
life and bodily integrity, and they asked the Court to issue a preliminary injunction. On
16 December 1983, a day after the First Senate’s Census judgment, the Second Senate rejected
the individual petitions for an injunction.154 In this case, the Senate explained, the threat to
life and limb flowed, not from officers of the Federal Republic, but from a foreign power: the
Soviet Union.155 A year and two days later, the Second Senate rejected the Greens’ complaint
as well.156
It did so in a very long judgment, one of the longest in the Court’s history. It was also,
many scholars thought, one of the strangest. After a thorough summary of the facts and a

153  The peace movement has generated an extensive literature. The classic account in English of the double-track

debates in West Germany is Jeffrey Herf, War by Other Means: Soviet Power, West German Resistance, and the
Battle of the Euro Missiles (Free Press 1991).
154  66 BVerfGE 39 (1983). 155 ibid 60. 156  68 BVerfGE 1 (1984).
204 Continuity, 1982–1990

prolix recitation of the anti-deployment arguments, the Senate began its legal analysis on
the judgment’s seventy-eighth printed page.157 The government’s decision, the justices con-
cluded, was entirely constitutional. Article 59 did not apply because the challenged measure
was not a treaty but a unilateral act under international law.158 In a lonely dissent, Justice
Ernst Gottfried Mahrenholz complained that this holding begged the question: the execu-
tive cannot skirt parliamentary participation by choice of form. But the majority held that,
under the Basic Law’s separation of powers, questions of this sort were reserved to the exclu-
sive discretion of the executive.159
On the face of things, Article 24 seemed even less likely to apply to the deployment than
Article 59. The Kohl government insisted emphatically that the deployment decision did
not transfer sovereign powers to an international body. The Second Senate held, on the con-
trary, and to the surprise of many, that it did, but that the preconditions for such a transfer
were fulfilled.160 There was no clear transfer of competences, the Senate conceded, but it was
clear that the right to decide when and how to employ the missiles did not rest in German
hands.161 That right belonged to the NATO supreme commander and, more directly, to the
president of the United States. Article 24 empowered transfer of sovereignty to interna-
tional bodies, not to functionaries of foreign powers. In a stretch of the juristic imagination,
however, the Senate held that the president’s power of command was a function entrusted
to him by the NATO alliance, so that, in this case, the president could be considered an arm
of NATO. And for purposes of Article 24, NATO was undeniably an international entity.162
Why, then, didn’t the transfer to NATO require prior parliamentary approval? Actually
it did, the judges explained, but the Bundestag had provided such approval when it passed
a law approving the Federal Republic’s accession to NATO … in 1955.163 Admittedly, that
law said nothing specific about deploying Pershing missiles (which didn’t then exist) on
German soil. But the Bundestag must have known that NATO membership would lead to
the atomic armament of the Federal Republic. The nature of the subject matter prevented
greater precision in the enabling statute and required considerable leeway in that act’s inter-
pretation.164 The Senate saw in the thirty-year-old accession law sufficient authorization for
the present deployment. For the rest, the Court deferred to executive discretion. Judges had
no legal standards to guide them in questions of life and death, peace and security. Such
questions must be answered politically.165
In dissent, Justice Mahrenholz argued that this last consideration once more begged the
question.166 The crucial question was not whether politicians or judges should make the
final decision concerning deployment, but rather which politicians must be involved. In
Mahrenholz’s view, the situation created by the deployment was unprecedented—not only
unforeseen but unimaginable from the vantage of 1955. Accession to NATO, Mahrenholz
wrote, was not a blank cheque that could be perpetually rewritten by the executive branch.
On the Article 59 question, Mahrenholz rebuked his colleagues for concluding summarily
that the decision was not a treaty without bothering to ask whether it should have been a
treaty. On the Article 24 question, he chided them for finding a transfer of sovereign rights
without taking seriously the consequences of that finding.
Some in the press thought that Mahrenholz had the better argument; others that he
reached a happier result. Der Spiegel compared his dissent to that of Wiltraut Rupp-von
Brünneck’s in the 1975 Abortion judgment.167 The Frankfurter Rundschau complained
that the judgment, for all the Senate’s professions of political withdrawal, would still have

157 ibid 3–63. 158 ibid 80–82. 159 ibid 87–89. 160 ibid 90. 161 ibid 90.

162 ibid 92–93. 163  ibid 99–101. 164 ibid 99. 165 ibid 97.
166  See his dissent in ibid 111–32. 167  ‘Befugnis zum Einsatz’ Der Spiegel (24 December 1984) 26.
 High (Constitutional) Politics 205

political consequences.168 Hans Schueler, by contrast, praised the Senate’s wisdom in with-
holding judgment on a question that judges have no ability to answer. Schueler reminded
critics that the decision exemplified the very restraint that some of them had urged on the
Court in earlier years.169 The Rheinische Post savoured the irony that the Kohl government
had the Greens to thank for the fact that a difficult political year ended with a victory in
Karlsruhe.170 Most observers greeted the outcome as inevitable. The deployment was an
accomplished fact. It would have been startling if the Court had unleashed a geopolitical
earthquake over a question of procedure.
However inevitable the judgment’s outcome, many scholars loathed its logic.171 The core
academic criticism was that the Senate was too lavish with the executive’s foreign policy
discretion and too cramped with the rights of Parliament.172 The process of internation-
alization, some scholars contended, would expand the executive arena inexorably. This
trend required a parliamentary counterweight.173 Most scholars found the Court’s Article
24 analysis unconvincing and the notion that the president of the United States was a ‘bor-
rowed organ’ of NATO appalling.174 Stand back from the details of the opinion, however,
and a deeper continuity emerges. The Pershing judgment fudged jurisprudential categories
in the name of deference to the ruling coalition’s central foreign policy and defence initia-
tive. In this sense, the judgment entered the tradition of the 1973 Basic Treaty judgment
and the various mid-1950s judgments approving Adenauer’s programme of Western inte-
gration. To be sure, these judgments included binding interpretations and restrictions on
future action. But the Court has never reversed a major foreign policy decision of a sitting
government. In this regard, and in this field only the Court has perhaps developed a limited
de facto political question doctrine.

Solange II: fundamental rights and European integration (again)

F. 
Deference to the coalition’s foreign policy was on display again two years later in the
Court’s second major decision regarding European integration. The two cardinal foreign
policy aims of Kohl’s government were to implement the double-track decision and to fos-
ter European integration, with special attention to the Franco-German friendship.175 The
Constitutional Court endorsed both these objectives: the former directly in its Pershing
judgment of December 1984; the latter indirectly in October 1986.
In its 1974 Solange judgment, the Second Senate reserved, the right to review the con-
stitutionality of domestic enforcement of secondary European law.176 The Court would
reserve this right, the Senate explained, so long as the European Community lacked a
fundamental rights charter that was democratically promulgated and judicially enforced.
When the Second Senate revisited the question twelve years later, it could hardly be said
that these conditions had been met. But the process of integration had advanced in notable

Frankfurter Rundschau (17 December 1984).

168 

Hans Schueler, ‘Der Richter und das unwägbare Risiko’ Die Zeit (21 December 1984) 2.
169 
170  In ‘Den Grünen zu Dank verpflichtet’ FAZ (20 December 1984) 2.
171  See Ralf-Müller Terpitz, ‘Pershing’ in Jörg Menzel (ed), Verfassungsrechtsprechung (2000) 368, 368–70.
172 See Brun-Otto Bryde, ‘Sicherheitspolitik zwischen Regierung und Parlament’ (1986) 8 Juristische

Ausbildung 363 (1986); Bernhard Docke, ‘Der Regierung eine Gasse!’ (1985) 13 Demokratie und Recht 10.
173  Ulrich Fastenrath, ‘Auswärtige Gewalt: Zustimmungsbedürftigkeit einseitiger völkerrechtlicher
Erklärungen, Übertragungen von Hoheitsrechten (Pershing-II-Stationierung)’ (1986) 18 Juristische
Arbeitsblältter 451.
174  Bryde (n 172) 368; Docke (n 172) 12; Fastenrath (n 173) 454.
175  Manfred Görtemaker, Geschichte der Bundesrepublik Deutschland (Oscar Beck 1999) 688.
176  See 37 BVerfGE 271 (1974).
206 Continuity, 1982–1990

ways. Denmark, Ireland, and the United Kingdom, which joined the EEC in 1973, were
increasingly settled within it—albeit, in Britain’s case, with jolting bumps along the
way. Greece acceded in 1981; Portugal and Spain in 1986. The first direct elections to the
European Parliament (such as it was) were held in 1979. In January 1985, the Frenchman
Jacques Delors began his momentous presidency of the European Commission. Five
months later, the Schengen agreement led to the opening of borders between most mem-
ber states. Against this backdrop, Solange’s sequel read its predecessor loosely. The Second
Senate proved more ‘integration-friendly’ in October 1986 than it had in May 1974.177
Once again, the underlying facts were unromantic. Solange I was about grain; Solange
II about tinned mushrooms. A West German importer of this ambrosial article had chal-
lenged unsuccessfully the application of a bothersome community regulation in a German
administrative court. He then filed a constitutional complaint against the administrative
court for declining to refer the matter to Karlsruhe.
The Second Senate’s holding of 22 October 1986 had two parts. The first found that the
European Court of Justice qualified as a ‘lawful judge’ for purposes of Article 101(1) GG.178
The second declared that, in matters of community law, the Constitutional Court generally
would not review the ECJ’s enforcement of fundamental rights.179 On the face of things,
this latter holding ran directly counter to the tenor of its 1974 forebear. But the underlying
principles, at least nominally, remained unchanged.180 What had changed was the Senate’s
assessment of how nearly community protections for fundamental rights approximated
those of the Basic Law. In the Senate’s view, there had flowered since 1974 ‘a degree of funda-
mental rights protection, which in its conception, content, and effect is essentially compa-
rable to the fundamental rights standard of the Basic Law’.181 All major Community organs
had committed themselves to honouring fundamental rights as enshrined in the domestic
constitutions of member states and in the European Convention on Human Rights. The ECJ
itself, moreover, had developed a robust rights jurisprudence anchored in the proportional-
ity principle.182 The ECJ’s case-by-case approach to fundamental rights naturally left gaps,
but these would close as the law evolved.183 The Second Senate concluded with a peroration
that paralleled, and flatly reversed, the eponymous passage of the first Solange judgment:
So long as the European Communities, particularly the jurisprudence of the Court of Justice
of the Communities, generally provide an effective protection for fundamental rights vis-à-
vis the sovereign authority of the Communities, essentially comparable to the fundamental
rights protection declared indispensable by the Basic Law, … the Federal Constitutional Court
will no longer exercise its jurisdiction over the applicability of secondary Community law
that forms the legal foundation for actions of German courts or administrators … and will
no longer review such law against the standard of the fundamental rights of the Basic Law.184

The judgment hereby christened itself. Forever after, it was called Solange II. Conspicuously,
the Court neither denied nor surrendered its jurisdiction over the constitutional applica-
tion of community law. It merely declined—indefinitely—to exercise it. Just as conspicu-
ously, the Senate gave no indication that it would change its mind in the foreseeable future.
The judgment was a de facto acknowledgement, even in the field of fundamental rights, of
the supremacy of European law.
The decision was something of a sensation, drawing front-page coverage in the daily
press.185 In scholarly circles, Solange II was nearly as much applauded as Solange I had

177 See 73 BVerfGE 339 (1986). 178  ibid 366–67. 179  ibid 378–87. 180  ibid 376–78.
181 ibid 378. 182  ibid 378–81. 183 ibid 383. 184 ibid 387.
185 See ‘Karlsruhe läβt Luxemburg den Vortritt’ FAZ (13 December 1986)  1; ‘Karlsruhe gibt Rechte an

EG-Gericht ab’, Süddeutsche Zeitung (13/14 December 1986) 1.

 Fundamental Rights in Shades of Green 207

been reviled. ‘In an elegant manner’, wrote Christoph Vedder, ‘the Constitutional
Court has succeeded in linking [its judgment], without too great a dogmatic rupture,
to Solange I, and in this manner made that much-disparaged judgment seem not such
an incomprehensible “outlier” on the path of development’.186 Some scholars conceded
that what they really liked about the judgment was its political outcome. Hans Heinrich
Rupp noted that the judgment, like its forebear, could be assessed by legal criteria only
with great difficulty.187 ‘What legal norm is it really’, Rupp wondered, that drove the
Second Senate’s reasoning?188 The 1986 judgment of the Senate majority read remark-
ably like the 1974 dissenting opinion of Justices Rupp, Hirsch, and Wand. It could
hardly be denied that a more ‘integration-friendly’ outlook could have led to the same
result twelve years earlier.189 But if the Court was merely correcting an earlier error, so
much the better. Besides, Rupp added, ‘so long as [!]‌in its fundamental rights jurispru-
dence the Constitutional Court, above all its First Senate, does not find its way back
to juristic-argumentative discipline and judicial precision, but loses itself instead in
the “distribution of mildness and severity according to insecure criteria”, it can mean
no great loss for fundamental rights’ if the Court delegates some of its prerogatives ‘to
the ECJ, the organs of the European Convention for Human Rights, and the ordinary
German courts’.190

II.  Fundamental Rights in Shades of Green

If the serial scandals of the established parties ensured that West German politics in
the 1980s was rarely edifying, the rise of the Greens ensured that it was never dull.
The Greens provided the most surprising and dynamic political innovation of the new
decade. Having entered Parliament promising consummate transparency and the abo-
lition of sinecures, the Greens were a self-proclaimed anti-party—nothing if not a spec-
tacular contrast to the parties that had ruled the Federal Republic since its founding.
Though the Greens’ programme was an omnigatherum of initiatives and reforms, its
deepest convictions, by some distance, remained rooted in pacifism and environmen-
tal protection. The party emerged during, and did much to foment, an astonishing
period of popular protest. When their aims were thwarted through political channels,
the Greens and their acolytes often took their cause to Karlsruhe. That they did so
often, and that they sometimes prevailed, is a testament to the Court’s power as a forum
of socio-political integration.191 Outsiders as well as insiders found vindication as well
as disappointment before the Constitutional Court. Even a party suspected of anarchy
and subversion willingly furthered the Federal Republic’s experiment with constitu-
tional justice.

Christoph Vedder, ‘Ein neuer gesetzlicher Richter?’ (1987) 40 NJW 526, 531.

186 
187 
Hans Heinrich Rupp, ‘Zur Prüfungskompetenz des BVerfG über die Verfassungsmӓβigkeit von Akten des
Europӓischen Gemeinschaftsrechts’ (1987) 42 JurizenZeitung 236, 241.
188 ibid 242.
189  See Christoph Vedder, ‘Ein neuer gesetzlicher Richter?—Zum Beschluss des BVerfG vom 22.10.1986’

(1987) 40 NJW 526, 529.

190  Rupp (n 187) 242 (quoting Justus Wilhelm Hedemann, Die Flucht in die Generalklauseln: eine Gefahr für

Recht und Staat (Mohr 1933) 75).

191  On the Court’s integrative role, see Gary A.  Schaal, Integration durch Verfassung und
Verfassungsrechtsprechung? Über den Zusammenhang von Demokratie, Verfassung, und Integration (Duncker
and Humblot 2000).
208 Continuity, 1982–1990

A.╇Brokdorf: pacifism and protest

While the presence of the Greens in the Bundestag gave protest movements an unprec-
edented institutional platform, the lifeblood of the movements remained, as ever,
extra-parliamentary. The period stretching from the late-1970s to the mid-1980s featured
popular demonstrations of exceptional magnitude, as we saw in connection with the Census
and Pershing cases. Occasionally, popular demonstrations grew violent, prompting clashes
with the authorities. Such clashes raised questions about the scope and limits of the consti-
tutional right of peaceful assembly.
The peace movement’s opposition to expanded atomic armament had a symbiotic rela-
tionship with the environmental movement’s opposition to domestic atomic energy. A phys-
ical and symbolic focal point for the latter initiative was the diminutive Schleswig-Holstein
town of Brokdorf. In the 1970s, Brokdorf was identified as the future site of a nuclear power
plant. In November 1976 and February 1977, protesters flocked to Brokdorf for mass dem-
onstrations against the proposed construction. Between 1976 and 1980, construction of
the plant was postponed repeatedly as the plans faced a series of administrative court chal-
lenges. At the end of 1980, it was announced that construction would resume. Cries of pro-
test rang out immediately. Sixty or so citizen initiatives and other volunteer groups planned
a united demonstration for 28 February 1981. These groups announced the protest, and
called on protesters to assemble, in a series of posters, pamphlets, and newspaper ads, some
of which were mildly menacing.
At the time of the proposed demonstration, the district of Steinburg, which included
Brokdorf, required organizers of large-scale protests to register in advance with the author-
ities. As of 23 February 1981, no registration for the announced protest had been submitted.
In consequence, Steinburg’s administrative chief issued a general decree banning, from
27 February to 1 March, the announced demonstration or any other demonstrations on
the construction site or in a surrounding region of about 210 km2. The chief justified the
ban by pointing to the omitted registration. But even if it had been registered, he explained,
the demonstration would have to be enjoined for fear of ‘serious disruptions of order and
criminal acts’. On 27 February, an administrative court partially granted the protesters’
challenge to this ban, explaining that the area covered was too large. Local authorities
immediately appealed this decision to a higher administrative court, and the appeals court,
within twenty-four hours, restored the ban. The protest’s organizers challenged this judg-
ment in a (literally) midnight appeal to Karlsruhe. The organizers alleged that the ban vio-
lated their right to peaceful assembly under Article 8 GG, and their right to free expression
under Article 5.
In the meantime, ban or no ban, the protest proceeded as planned. Turnout well exceeded
50,000; vandalism and violence well exceeded zero. There were numerous clashes, in which
several persons—protesters as well as police—were injured. But the noisiest fears of a ‘civil
war’ never materialized.192
The protesters’ constitutional complaint sat in the Court’s inbox for four years. Only on
14 May 1985 did a unanimous First Senate reverse the judgment of the higher Administrative
Court.193 The judgment endures as the Court’s first extended engagement with Article 8’s
guarantee of the right to assemble in peaceful protest.

192╇ For contemporary accounts, see ‘Nach der Massendemonstration in Brokdorf Lob für die Polizei’ FAZ

(2 March 1981) 1; Johann Georg Reiβmüller, ‘Wie viele Feldschlachten noch?’ FAZ (2 March 1981) 1; ‘Der Marsch
der Siebzigtausend’ Die Zeit (6 March 1981) 3.
193╇ 69 BVerfGE 315 (1985).
 Fundamental Rights in Shades of Green 209

After a thirty-four-year drought of Article 8 jurisprudence, the justices seemed eager to

make up for lost time. The judgment indulged in a long discursus of dazzling dicta on the
scope and nature of the right of assembly. One critic complained that the judgment read
more like an excerpt from a Basic Law commentary than a judicial decision.194 Presumably,
the justices hoped to give guidance for future disputes. Or perhaps they just couldn’t help
themselves. The temptation to propound first principles was great; no one knew when the
chance would return.
In sonorous echoes of Lüth, likely drafted by Helmut Simon, the case’s presumptive rap-
porteur, the Senate extolled the assembly right’s centrality within the Basic Law pantheon.195
The right existed ‘above all’ for the protection of ‘different-minded minorities’.196 As the
particular ‘emblem of the freedom, independence, and maturity of the citizen’, it enjoyed a
‘special rank’ within a free political system.197 Like the freedom of speech exalted in Lüth,
the freedom of assembly was ‘constitutive for a free, democratic state order’.198 It was the
‘most immediate expression of the human personality and one of the noblest human rights
of all’.199
The right had long roots in the Anglo-American tradition, but it assumed added signifi-
cance in a modern, technocratic society dominated by powerful interest groups. In such a
society, individuals could often exercise influence only collectively.200 In a system of par-
liamentary representation with few strands of plebiscitary participation, an uninhibited
right of assembly was crucial; it was the citizen’s only access to direct democracy. On this
point, the Senate cited the academic writings of one of its own, Justice Konrad Hesse. Public
gatherings, Hesse had written, ‘offer … the possibility of public influence in the political
process, of the development of pluralistic initiatives and alternatives or also of criticism and
protest …; they contain a quantum of original, untamed, unmediated democracy, capa-
ble of preserving the political process from ossifying into a business routine’.201 Voluntary
popular gatherings were an antidote against the petrifaction of politics as usual.202 The right
of assembly represented the most direct outlet—and often the only outlet—for the voice of
‘We the People’.
These were striking passages, however irritating (because not necessary to the Senate’s
holding) to academic commentators.203 Here was an indirect acknowledgement that the
constitutional order of the Federal Republic featured ‘narrow rights of plebiscitary partici-
pation’; few opportunities for the direct engagement of free, independent, mature citizens;
and few instances of ‘original, untamed, unmediated democracy’.204 The Court making
the acknowledgement had done much to bring about this state of affairs. In a season of
widespread disenchantment with the political establishment, the First Senate held forth
an ideal of a mature and engaged citizenry revitalizing the country’s political life through
immediate democratic participation. The right of assembly, the Senate suggested, empow-
ered citizens to dare more democracy. It was Willy Brandt’s inaugural manifesto reprised
in obiter dicta.
Naturally, the right was not unlimited.205 It secured only ‘peaceful’ assemblies, ‘without
weapons’. Public authorities must preserve other interests, such as safety and order. But

Wolf-Rüdiger Schenke, ‘Anmerkung’ (1986) 41 Juristenzeitung 35, 35.

194 
195 
69 BVerfGE 315 (n 193) 342–48. 196 ibid 343. 197 ibid. 198 ibid 344.
199 ibid. 200 ibid 346. 201  ibid 346–47.
202  See Bruce A. Ackerman, We the People: Foundations, vol 1 (Harvard University Press 1991) 31, 111.
203  See, e.g., Volkmar Götz, ‘Versammlungsfreiheit und Versammlungsrecht im Brockdorf-Beschluβ des

Bundesverfassungsgerichts’ (1985) 101 Deutsches Verwaltungsblatt 1347; Christoph Gusy, ‘Lehrbuch der
Versammlungsfreiheit—BVerfGE 69, 315’ (1986) 26 Juristische Schulung 608; Schenke (n 194).
204  69 BVerfGE 315 (n 193) 347. 205  ibid 348–54.
210 Continuity, 1982–1990

those interests did not supply a blank cheque. They were subject to the proportionality prin-
ciple, which must be applied strictly on the assemblers’ behalf. In most instances, public
authorities should give protesters the benefit of the doubt. A protest should not be banned,
for instance, because a fringe minority of protesters threatens violence. Registration require-
ments were permissible in principle, but failures to register should not trigger automatic
bans. Nor should registration requirements suppress spontaneous assemblies. Banning a
protest was the administrative ultima ratio; it must be employed only when all efforts at
cooperation with an event’s organizers fail.206
By this standard, the Schleswig-Holstein public assembly laws were not, on the face of it,
invalid.207 Whether they were unconstitutionally applied the Senate did not say. The con-
tested ban was improper because the administrative appeals court applied the relevant laws
improperly.208 Further than this the Senate need not inquire. It was an anti-climactic hold-
ing after so rhetorically-laden a preface. But the holding in favour of the complainants was
consistent with the justices’ ringing disquisition on Article 8. In a season of unprecedented
public protests driven by disillusion with traditional politics and established politicians, the
Court had given the rights of protesters a forceful and unanimous endorsement.

B.╇‘Atomic energy? Nein, danke’

Five months later the First Senate granted another complaint arising from an officially inter-
dicted protest against atomic energy.209 This case, however, involved a single demonstrator.
Lower Saxony law provided that citizens could be drafted as assessors in local elections.
Those refusing to serve without a legally recognized reason were fined. The law further
forbade assessors to engage in partisan politicking at the polls. An individual known in the
Court records as ‘Herr B.’ was assigned to work as a poll-watcher during communal elec-
tions held 27 September 1981. Mr B. reported for duty bearing a badge that read, ‘Atomic
energy? No, thank you’. (Atomkraft? Nein, danke.) He was asked to remove the badge but
refused. He was then dismissed from the job and fined 100 DM for refusing to serve.
Mr B. complained to the local administrative court that he had not refused to serve, but
that his service had been rejected. The administrative court agreed, but the court of appeals
in Celle reversed. The appeals court reasoned that refusal to comply with the terms of ser-
vice was refusal to serve. The appeals court reinstated the fine, and Mr B. filed a constitu-
tional complaint, alleging that the fine violated his free speech rights under Article 5(1) GG,
as well as the precept in Article 103(2) that an act may be punished only if its culpability was
established by law before the act was committed.
The Constitutional Court agreed, quashing the appeals court decision in a judgment
issued 23 October 1985. Laws exacting honorary service from citizens, the First Senate
explained, generally had two parts, one dealing with the whether of honorary service,
another with the how.210 Lower-Saxon law established fines only for the former. One could
be fined for refusing to serve, but not for refusing to serve as directed. By analogizing the
latter case to the former, the court of appeals had engaged in judicial lawmaking—which
Article 103(2) forbade where fines or sanctions were involved.211 This was unconstitutional
in its own right, but it was doubly so in this case because the fine punished free speech.
Article 5 GG decreed that the right to free speech could be limited only by a ‘general law’,
and judge-made law did not qualify.212

206╇ibid 362. 207╇ibid 363. 208╇ ibid 368–72. 209╇ 71 BVerfGE 108 (1985).

210╇ibid 117. 211╇ ibid 118–19. 212╇ibid 121.
 Fundamental Rights in Shades of Green 211

C.╇The Greens at bay
Though the Brokdorf and Election Badge judgments dealt with the rights of protesters rather
than the substance of their protest, the Greens and their sympathizers applauded them
enthusiastically. The Greens and their fellow travellers had suffered notable disappoint-
ments in the Bundestag Dissolution and Pershing Deployment judgments, but also dramatic
victories—in the last two judgments discussed and, more impressively, in the Flick and
Census decisions. Indeed, by mid-decade, no established party had fared nearly so well
in Karlsruhe as had the unorthodox Greens. This fact helped confirm the Court’s status
as an impartial umpire for the rights of outsiders and eccentrics. But the coincidence of
the Greens’ rise with the historical highpoint of public trust in the Constitutional Court
highlights a point of commonality between a Court and a party who outwardly had lit-
tle in common: distance from the political establishment. The Greens’ sneaker-donning,
expletive-hurling leader, Joschka Fischer, had very little in common with the staid and
sober, drab and dignified Roman Herzog, chairman of the First Senate and, after 1987,
chief justice. But both the Greens and the Court were perceived and prized as independent
checks on the powers that were. This perception, at a time when those powers exuded an
aura of incompotence and scandal, worked to the enormous advantage of both the political
avant-garde and the guardians of the constitution.
But the tide of the Greens’ fortunes in Karlsruhe soon ebbed—indeed, had already begun
to ebb. Three weeks before the Brokdorf judgment the Greens’ sympathizers were appalled
and dismayed by a judgment approving a recent reform of the conscientious-objection
law—one of the laws the Christian–Liberal coalition passed between assuming office in
October 1982 and winning the election of March 1983. The law made the civil service alter-
native for conscientious objectors longer than the term of compulsory military service by
about five months. Under the new law, compulsory service lasted fifteen months, civil alter-
natives twenty months. The government hoped the law would discourage conscientious
objection by weeding out inauthentic claims. But the text of Article 12 GG seemed to stand
in its way: ‘the duration of the alternative service may not exceed the duration of mili-
tary service’. To many minds—including those of the SPD state governments and the SPD
Bundestag faction that challenged the law before the Constitutional Court—the law was
flatly unconstitutional, a glaring violation of an unambiguous constitutional text. But in its
judgment of 24 April 1985, the Second Senate held otherwise.213
The reasoning with which it did so would redden the cheeks of the proverbial Jesuit. The
Senate majority stressed that those engaged in compulsory military service faced the pos-
sibility, in theory, of an extended term totalling twenty-four months. The possibility that
the longest military term might exceed the longest civil term made up for the fact that the
usual alternative term exceeded the military norm. The Senate found this point especially
compelling in light of the indefinite military service required in times of war. What’s more,
military service was more burdensome than the civil alternative. A day spent toiling on
the training ground or idling in the barracks, the Senate suggested, was longer than a day
spent serving senior citizens or tending a public park. This reasoning made the term ‘dur-
ation’ either a metaphor or a pun, and the Senate’s two dissenters, Justices Böckenförde
and Mahrenholz, had trouble remaining patient in their refutation. ‘Duration’, they pro-
pounded, ‘is a quantitative concept; it refers to periods of time’.214 ‘In comparing the dur-
ation of the regular terms of service’, the exasperated dissenters continued, ‘comparisons
with an unknown are not allowed’.215

213╇ 69 BVerfGE 1 (1985). 214╇ibid 67. 215╇ibid 69.

212 Continuity, 1982–1990

The conservative press praised the Senate’s pragmatism and crowed over the unhappy
complainants. ‘When they governed Bonn’, lectured the Frankfurter Allgemeine Zeitung,
‘the Social Democrats regularly accused the Union, then in opposition, of wishing to
win before the Constitutional Court the battles they lost in Parliament. Now the Social
Democrats are doing just this’.216 The Left–Liberal press responded with angrily. ‘20 = 15’
was the caustic headline of a Spiegel article that railed against the judgment’s ‘linguistic and
logical absurdity’.217 Hans Schueler wrote in Die Zeit that the judgment was ‘wrong’ in its
outcome and ‘embarrassing’ in its reasoning—comparable in its ominous casuistry to the
Emergency Laws judgment of 1970.218 For these writers at least, the afterglow of the Census
judgment had dimmed. And for the Greens, who loathed the law in question, the honey-
moon in Karlsruhe was over.
Nine months later, another disappointment before the Constitutional Court would affect
the Greens directly. In a January 1986 judgment, the Court sided with the established par-
ties against the Greens in an intra-parliamentary dispute. At issue was the Green faction’s
right to representation on parliamentary committees. Traditionally, the government’s pro-
posed budget for the secret services was reviewed by a parliamentary subcommittee before
the full Bundestag approved a lump sum for the intelligence agencies as part of the gen-
eral budget. In 1984 and 1985, however, the Bundestag reversed the routine. Now a special
committee would review the details of the intelligence budget after the Plenum approved a
lump sum. Until the subcommittee approved those details, only 25 per cent of the requested
funds could be disbursed. The committee convened under the strictest secrecy—and it was
very small. The five-member committee included two members from the Union parties,
two Social Democrats, one Free Democrat, and not a single Green.
Many suspected that the committee’s small size and unusual procedures were designed
to exclude the Greens. They had reason to be suspicious. During the Bundestag debates
over the committee’s creation, Wolfgang Weng (FDP) distinguished between parliamen-
tary parties who were ‘supportive of the state’ (staatstragend) and those who were not
(nichtstaatstragend).219 Weng’s clear implication was that the Greens’ allegiance to the Basic
Law was suspect. At the very least, many in the traditional parties questioned the Greens’
commitment to maintaining an intelligence force—or to keeping secrets. The Greens, after
all, were self-proclaimed paladins of transparency. Shortly after the March 1983 election,
Petra Kelly, a Green Party founder and newly elected member of the Bundestag, declared
that she would gladly pass along confidential information that came her way. The publica-
tion of official secrets, she added, was ‘a fundamental principle of the Greens’.220 Kelly was
swiftly contradicted by other Green leaders, but the impression that the Greens could not be
trusted with confidential material endured.
Placing Greens on the intelligence committee struck many parliamentarians as incon-
gruous and self-defeating. During a December 1983 debate on the question, Adolf Roth, a
CDU back-bencher, bluntly told Hubert Kleinert, the Greens’ candidate for the intelligence
subcommittee, that having Kleinert review the intelligence budget would be setting the fox
to guard the henhouse, or, in the German idiom, ‘making the goat the gardener’.221 This
remark elicited ‘demonstrative applause’ from the Union and FDP factions. Animated by

216  ‘In Ordnung gebracht’ FAZ (25 April 1985) 12.

217 ‘Zivildienst: 20 = 15’ Der Spiegel (29 April 1985) 57.
218  Hans Schueler, ‘Die Verfassung ein wenig vorbeugen?’ Die Zeit (3 May 1985) 5.
219  Verhandlungen des Deutschen Bundestages. Stenographische Berichte, vol 127 (1984) 3933.
220  In ‘Muntere Zeiten’ Der Spiegel (14 March 1983) 29.
221  Verhandlungen des Deutschen Bundestages. Stenographische Berichte, vol 126 (1983) 3246.
 Fundamental Rights in Shades of Green 213

such misgivings, the Bundestag implemented a procedure that kept the Greens off the com-
mittee and kept the committee’s deliberations secret.
The Greens, naturally, cried foul, lodging a multi-pronged complaint against the
committee’s constitutionality. The complaint argued that, by excluding the Greens
from the subcommittee, the Bundestag had violated a host of constitutional provisions:
Article 38(1) GG, which makes all members representatives of the entire people; the prin-
ciple of equal opportunity for political parties; the protection of minorities; principles gov-
erning Bundestag review of the governmental budget; and more besides. In its judgment of
14 January 1986, the Second Senate rejected these complaints across the board.
Parliament’s power over the purse, the Senate acknowledged, was perhaps its most
momentous power, a lynchpin in the constitution’s separation of powers. The Basic Law
required that the Bundestag exercise its power of budgetary review vigorously, indepen-
dently, and with access to the most comprehensive information possible.222 Nothing in
the organization and operation of the subcommittee for the intelligence budget offended
this principle. Limits on what funds could be disbursed before the committee approved
the budget provided an adequate safeguard against executive abuse.223 That the Bundestag
amended the committee’s composition and procedure by direct vote, rather than by
amending the Parliamentary Rules of Procedure, was unproblematic, especially since such
an amendment would not require Bundesrat approval.224 In any case, the intelligence ser-
vices made up a relatively slight segment of the budget. This, combined with the highly
sensitive nature of the relevant information, justified an unusual and confidential system
of review.225
The exclusion from the subcommittee of any Green Party representative was troubling,
but not fatal. Under Article 38, all factions had, in principle, an equal right to participation in
budgetary debates and to representation on budgetary committees.226 But this did not mean
that, without exception, all factions must be represented on all committees. Parliamentary
factions, the justices explained, were not homogenous, and the rights of individual mem-
bers under Article 38 could not be transferred ipso facto to partisan factions.227 More cru-
cially, Parliament’s interest in confidentiality was one requiring ‘a high degree of caution’,
and it was ‘not the business of the Federal Constitutional Court to second-guess in minute
detail how far this caution may go’.228 It was the reserve of a democratically legitimated
Parliament—‘in narrowly limited cases’—to depart from its normal procedures.229 ‘For
compelling reasons of confidentiality’, the justices summarized, ‘it can be constitutionally
tolerable that individual factions are not included in the composition of a committee’.230
But the Senate majority never explained what might constitute such ‘compelling rea-
sons’, nor did it explain what the exceptional cases were, how they were limited, or when
those limits were narrow. Justices Mahrenholz and Böckenförde made precisely this point
in pointed dissents. Article 38, Mahrenholz wrote, did not grant parliamentary majorities
the right to vote away the right of parliamentary minorities to participate in the parlia-
mentary process.231 Only the totality of the Bundestag qualified as the people’s assembly,
and all of the Bundestag’s subunits must mirror that totality.232 Böckenförde insisted that
there were no classes among members based on the groups to which they belonged. Any
departure from the principle that all groups participate in all decisions required compelling
justification and must be a measure of last resort.233 Rather than enforcing such an exact-
ing bar, the majority had outlined a standard that was ‘open’ and ‘fluid’.234 The majority’s

222  71 BVerfGE 354, 356 (1986). 223 ibid 357. 224  ibid 360–61. 225 ibid 362.
226 ibid 363. 227  ibid 363–64. 228 ibid 364. 229 ibid 366. 230 ibid 325.
231  ibid 366–67. 232 ibid 369. 233  ibid 381–83. 234 ibid 385.
214 Continuity, 1982–1990

gesture toward ‘narrowly limited cases’ was a watchdog with few teeth—and the teeth it had
were blunt. In effect, Böckenförde concluded, the Senate majority had given the Bundestag
majority licence to exclude minorities it distrusted.235
Media assessments of the judgment were predictably mixed, splitting down partisan
lines. ‘Right in spite of everything’, was the verdict of the Frankfurter Allgemeine Zeitung.236
In a number of cases and across a range of fields, FAZ noted, the Court had modified the
credo ‘Fiat justitia, pereat mundus!’237 in the name of ‘practical reason’. Why should ques-
tions of internal and external security be any different? For the Left–Liberal press, by con-
trast, such ‘practical reason’ eviscerated the text and flouted the spirit of the constitution.
Hans Schueler thought the majority opinion ‘ominous’, antithetical to the spirit of the con-
stitution like no other judgment since the 1970 Emergency Laws decision.238 ‘The Karlsruhe
judges degrade the Greens to MPs of the second class’, was Schueler’s summary headline.239
Der Spiegel, as always, was even more emphatic.240 The judgment, that paper wrote, was
not merely wrong; it was an emblem of institutional decline, at least for one of the Court’s
chambers. Böckenförde and Mahrenholz had dissented so as ‘not to share responsibility
for the downfall of half of the Karlsruhe superior jurisdiction’.241 The judgment was a clear
case of ‘political opportunism’ from a Senate dominated by a five-justice CDU majority ren-
dered impregnable by Wolfgang Zeidler, the chief justice, who, though nominally a Social
Democrat, was an ‘arch-conservative’ on questions of security and defence, law and order.
The decision was a sad sequel to the Alternative Service judgment of the previous year, a
further episode in the ‘self-dismantling’ of a Second Senate that had ‘long … valued the
protection of the state more highly than protection from the state’.242
There were disappointments in store for the Greens from the First Senate as well.
After the Brokdorf judgment, Roman Herzog, the First Senate’s presiding judge and the
Court’s vice president, had come under fire from former CDU comrades who mocked his
damascene conversion to the rights of protesters.243 As interior minister for the state of
Baden-Württemberg, Herzog had read protesters’ rights less liberally, though Herzog him-
self insisted that the basis for the Brockdorf decision could be found in the 1981 edition of
his Basic Law commentary.244 The judgment’s sympathizers hailed the future chief justice
for bucking partisan prejudices and charting a just and independent course. In November
1986, Herzog’s decisive vote in another major judgment involving the rights of protesters
cost him the favour of these temporary fans.
The case involved countless complaints from protesters who took part in sit-in demon-
strations designed to obstruct the deployment of Pershing missiles. The protesters, all of
them non-violent, sat down together in street blockades to deny vehicle access to military
facilities. These ‘sit blockades’ (Sitzblockaden) were ultimately dispersed by the police, and
the protesters offered no resistance. The protesters universally confessed to having violated
traffic and assembly laws, the penalty for which was a small fine. Many of them, however,
were convicted of ‘coercion through use of force’ (Nötigung mit dem Mittel der Gewalt), an
offence also punishable by fine, but punishable under the criminal code. Many protesters
who would willingly have paid a fine objected strenuously to the stigma of a criminal con-
viction. Scores of them filed constitutional complaints.

235 ibid 386. 236  ‘Trotz allem Richtig’ FAZ (15 January 1986) 1.

237  ‘Do justice, though the earth perish’.
238  Hans Schueler, ‘Abgestempelt als Sicherheitsrisiko’ Die Zeit (17 January 1986) 3. 239 ibid.
240  ‘Schwarzer Dienstag’ Der Spiegel (20 January 1986) 42. 241 ibid. 242 ibid.
243  Werner Filmer and Heribert Schwan, Roman Herzog. Die Biographie (Bertelsmann 1994) 185.
244 ibid.
 Fundamental Rights in Shades of Green 215

The question before the First Senate was whether the classification of a non-violent
physical obstruction as the coercive use of force fell afoul of the ‘analogy ban’ the Court
had derived earlier from Article 103(2) GG.245 That principle forbad judicial expansion of
criminal categories by way of analogy to situations beyond those intended by the legis-
lature or anticipated by reasonable citizens. Four justices thought applying the category
of coercion to the sit-blockades was an unconstitutional extension of a crime tradition-
ally limited to affirmative physical activity. Four other justices—presumably including
Herzog—disagreed, and the tie ran against the complainants.
Contemporaries heard in the posture of the case and the outcome of the judgment an echo
of the Spiegel judgment twenty years earlier.246 As with that earlier judgment, those who
sympathized with the non-victorious complainants saw grounds for hope in the Court’s
reasoning. Hans Schueler wrote that, whatever the outcome of the decision, the judgment
itself was replete with ‘liberal wisdom’247—the handiwork, all agreed, of the case’s rappor-
teur, Helmut Simon. The judgment’s grounds of decision, Schueler contended, were most
persuasive where they seemed most at odds with the outcome. That discrepancy gave some
hope for the future and softened or muted most criticism of the judgment. Those hopes
proved justified when the First Senate revisited the question, and reversed its position, just
nine years later.248 For now, those disappointed by the decision consoled themselves by
reflecting that, even if the First Senate had passed an illiberal judgment, it had still spoken
with an eminently liberal voice.

D.╇The parliamentarian without a party

Not so the Second Senate, critics continued to think. Three years after denying the
Greens’ petition for a right of participation in parliamentary committees, the Second
Senate addressed the complaint of another parliamentary minority—in this case a
minority of one. In January 1987, Thomas Wüppesahl, a thirty-one-year-old public
administration student with a curly crop and a daunting beard, was elected from the
Green Party list to a term in the Bundestag. In May, the ungrateful Wüppesahl left his
party; the Greens retaliated, in January 1988, by expelling the bearded renegade from
their Bundestag faction. This cost Wüppesahl his post as the Greens’ domestic policy
speaker, as well as his seats on parliamentary committees. As a now faction-less mem-
ber, Wüppesahl insisted on his right to introduce bills, to sit on committees, to deliver
speeches, and more besides, including an allowance (like that granted to other mem-
bers) for expert analysis and legal counsel. This last request the parliamentary Plenum
denied. When Wüppesahl then rose to propose an amendment to the Bundestag’s rules
and regulations, his request to speak was denied too. Silenced in Bonn, Wüppesahl sued
in Karlsruhe.
He contended that several features of the parliamentary rules and regulations—
proportioning seats on parliamentary committees and on the Bundestag Council of
Elders (Ältestenrat) on the basis of faction strength; granting factions, and factions alone,
the right to staff committees and to muster investigations—were unconstitutional.
Wüppesahl also complained that the Bundestag had violated his personal rights as a
member by denying him a subsidiary allowance and ousting him from the committees on
which he sat. The textual anchor of the complaint was Article 38(1) GG, which proclaimed

245╇ ‘An act can be punished criminally only when its criminality was established before the act was committed’.
246╇ See Hans Schueler, ‘Blockade im Senat’ Die Zeit (14 November 1986) 6. 247╇ibid.
248╇ 92 BVerfGE 1 (1995).
216 Continuity, 1982–1990

parliamentarians to be ‘representatives of the entire people’, answerable ‘to their conscience

alone’ for the discharge of their office. It was his right and duty, Wüppesahl contended,
to represent the entire nation. Current parliamentary procedure and practice denied him
that right.
The Second Senate agreed only in minor part.249 True, the Bundestag could fulfil its role
as unmediated representative of the people only through the participation of all members
collectively. Each individual member had, therefore, a right to participate in parliamentary
‘will-formation’ (Willensbildung).250 This included the right to speak, to vote, to pose ques-
tions and present information, to press initiatives and to join factions.251 But the Bundestag
Plenum had rights of its own, specifically the right autonomously and independently to
regulate its internal procedures. The Plenum could determine collectively how members
exercised their rights individually. This meant, where necessary, that the Plenum could
limit individual rights, though it must never abolish them.252 Applying this principle to the
present case, the Senate majority afforded Wüppesahl the right to membership on com-
mittees, but only in a limited sense. He could sit on the committee, make speeches, and
raise motions; but he could not vote.253 He must be allowed to be present and to ply the
arts of persuasion, but the constitution required no more than this. On these terms, the
Senate ordered Wüppesahl’s reinstatement—but as a non-voting member—to the interior
committee.
It was a very modest victory. And it was Wüppesahl’s only victory. The Senate rejected his
remaining arguments in their entirety. The staffing of the council of elders and the commit-
tees of inquiry through factional nomination raised no constitutional difficulties.254 Indeed,
the justices reflected, including faction-less members on inquiry committees would expand
disproportionately their influence within those committees.255 Providing additional allow-
ances only to the factions was unproblematic as well. Additional funding for factions was
designed to help them coordinate the parliamentary division of labour. Independent mem-
bers took no part in this coordinating effort. What other expenses a party-less member
might incur to acquire information or secure expert counsel could be reimbursed indepen-
dently through the Bundestag’s administrative procedures.256
The judgment prompted two dissenting opinions, one that thought the majority’s con-
ception of a member’s mandate too lavish; another that thought it too spare. Justice Konrad
Kruis, who had joined the Court in 1987, argued that a faction-less member not only had
no right to vote on committees; he had no right to belong to them.257 The Bundestag’s divi-
sion into factions, Kruis contended, led naturally to the conclusion that membership on
parliamentary committees was to be had only through the factions’ mediation. A member’s
right to serve on committees was therefore mediated, and circumscribed, by his right to join
a faction.258 In contrast, Justice Ernst Gottfried Mahrenholz—now the Court’s vice presi-
dent as well as its most frequent and formidable dissenter—thundered that the right to sit
on a committee and to speak during its deliberations was blighted and hollow without the
right to vote on its measures.259 The unity of debating and voting, Mahrenholz noted, was
acknowledged as early as Hegel and affirmed as recently as the latest Basic Law commentar-
ies.260 The majority’s division of the two was unpalatable in theory and unconstitutional in
practice—a clear violation of the presumptive equality among members of Parliament and,
by extension, among members of parliamentary committees.

249  80 BVerfGE 188 (1989). 250 ibid 217. 251 ibid 218. 252 ibid 219.

253  ibid 221–26. 254  ibid 227–30. 255 ibid 230. 256 ibid 232. 257  ibid 241–44.
258  ibid 242–43. 259  ibid 235–40. 260 ibid 237.
 The Largest Turnover in the Court's History 217

The irony that the Court reached an apex of popular esteem in the 1980s by emerging
as a restraint on and a contrast to the political parties whose role in the Federal Republic
the Court’s own party-state doctrine had exalted was noted earlier. It is an additional
irony that Thomas Wüppesahl and his former party fellows suffered the defeats just
recounted largely due to the continued influence of the party-state doctrine in weaken-
ing Article 38’s protections for individual parliamentarians. The Court might indeed
serve as a check on the established parties. Within Parliament, however, those parties
remained supreme.

III.  The Largest Turnover in the Court’s History

The Second Senate that reviewed the claims of Thomas Wüppesahl in 1989 looked very
different from the Senate that reviewed the claims of his former colleagues in 1986. The
First Senate, too, had undergone major changes. In the two years following the Intelligence
Budget decision, both Senates replaced half their members. Even to those organs, like Der
Spiegel, that found the Second Senate highly uncongenial, this was not necessarily a cheering
prospect. Der Spiegel’s Rolf Lamprecht, among others, bemoaned the SPD’s track record of
nominating judges from the party’s Right wing. The Union parties, by comparison, seemed
successfully to have nominated a succession of rock-ribbed partisans.261 But even from this
unabashedly partisan perspective, the SPD’s nominations in 1986/1987 were not so dire.
In the late 1970s, the leading parties had agreed that within each Senate both SPD and
CDU/CSU would nominate three judges from the ranks of their party members, with a
fourth nomination reserved for a ‘neutral’ judge—that is, a judge with no official party
affiliation but presumed, in practice, to favour the party that nominated her. The junior
coalition partner of the party in power—always, thus far, the FDP—was accorded one of its
partner’s nominations. Only in 1986, when the SPD nominated Karin Graβhof, a judge on
the Federal Court of Justice, to replace Hans-Justus Rinck, whom the CDU nominated to
the Second Senate in 1968, was the anticipated balance achieved. After Graβhof’s appoint-
ment, the balance on the Second Senate shifted from a 5:3 ‘CDU majority’ to an even split of
4:4. At the same time, the balance on the First Senate was four (SPD) to three (CDU) to one
(FDP). The remaining seven appointments in 1986/87 preserved these ratios.
Rinck’s resignation in October 1986 ended the last of the life-term appointments to
the Court. Of the remaining justices, only Helmut Simon had served longer than twelve
years, and Simon would depart the following year.262 Like Werner Bӧhmer three years
earlier, Rinck, a veteran of the Second World War, lamented in his farewell address the
departure from the Court of the ‘War generation’. He wondered how the Court would
be affected by the absence of judges with firsthand experience of the historical events
that brought the Court into being.263 Six months earlier, Franz Niedermaier, seven years
Rinck’s junior but still (barely) a member the War generation, died of illness at the age of
sixty. Niedermaier’s seat on the First Senate was filled by Otto Seidl, also a judge on the
Federal Court of Justice.

See Rolf Lamprecht, ‘Nur noch den Himmel über sich’ Der Spiegel (17 August 1987) 30.
261 
262 
Simon was originally appointed in 1970 to finish the term of Wolfgang Zeidler, who had left the Court after
only three years. In 1975, Simon was granted a twelve-year term in his own right—incidentally at the same time
that Zeidler rejoined the Court as vice president.
263 Hans-Justus Rinck, ‘Abschiedsworte’ (21 November 1986). Copy in Friedrich-Ebert-Stiftung, Bonn,

(Nachlass Martin Hirsch, 1/MHAC000104).

218 Continuity, 1982–1990

The Court of Justice’s overrepresentation among the six seats—three in each

Senate—reserved for sitting federal judges was slightly modified the following year. The
SPD nominated Thomas Dieterich, a federal labour judge, to replace Helmut Simon on the
First Senate, and Everhardt Franβen, a federal administrative judge, to replace Wolfgang
Zeidler on the Second. The remaining appointees, with one exception, were professors.
The CDU appointed Alfred Söllner, a professor of Roman and labour law in Gieβen, to fill
Dietrich Katzenstein’s seat on the First Senate, and Paul Kirchhof, a forty-four-year-old tax
professor from Heidelberg, to fill Helmut Steinberger’s seat on the Second Senate. The SPD
nominated Dieter Grimm, a prominent public lawyer from Bielefeld with wide-ranging
academic interests, to replace Konrad Hesse, theretofore the First Senate’s most formidable
academic. The only non-judge and non-academic in the new recruiting class was Konrad
Kruis, a government lawyer in Bavaria and the lone CSU nominee.
Among the SPD nominees, Dieterich and Franβen were reportedly associated with the
party’s Left wing.264 But Rolf Lamprecht, who fretted in Der Spiegel about the party’s pro-
pensity to appoint judges from its right flank, was unappeased. The party had blown the
chance to appoint Erich Steffen, a chairman of the Federal Court of Justice and a com-
mitted Leftist.265 And whatever the partisan virtues of the appointment process’ outcome,
Lamprecht railed that the process itself was unconstitutional. The flat letter of the Basic Law
decreed that justices be appointed ‘by the Bundestag and the Bundesrat’. Instead, all major
decisions were made behind the scenes by a pair of ‘king makers’,266 endorsed by selection
committees shrouded in secret deliberations, and finally rubberstamped by the parliamen-
tary Plenum.267 As a result, the Court—an organ of state ‘sometimes mightier than all the
others together’—lacked democratic legitimation.
Some leading politicians agreed. Martin Hirsch, the former justice, a man never loath
to publish his provocative musings, questioned publicly the constitutionality of the pro-
cedure. Herta Däubler-Gmelin, an SPD legal expert in Parliament, called for the selection
committee to meet publicly. And the Green faction, irrepressible proponents of transpar-
ency, proposed a bill that would require all aspirants for the highest bench to appear in the
Bundestag for a plenary debate.
Whatever hope these proposals may initially have had soon vanished. On 7 October 1987,
the Bundestag’s judicial selection committee approved the several appointments to the
Federal Constitutional Court unanimously. The previous day, by a vote of 9:5, the United
States Senate Judiciary Committee rejected the nomination of Robert Bork to the United
States Supreme Court. While the six appointments to West Germany’s highest court had
been secured through private deliberations between agents of the major parties, the concom-
itant Bork nomination became a lightning rod of rumbustious public controversy. It may be
that the Federal Republic’s political chieftains took a look across the Atlantic at America’s
brilliant spectacle of demagoguery and partisan recrimination—of interest-group mobili-
zation and a national puppet theatre of televised hearings—and retreated from the prospect
of heightened publicity with a shudder of revulsion. In any case, nothing came of the calls
for reform.
The suggestion that the Court lacked democratic legitimacy because the recruitment of
its members was opaque never gained broad currency. Press coverage of Constitutional
Court nominations was rarely extensive or prominent, and the public, perhaps as a result,

264  See ‘Drei Professoren, zwei Bundesrichter und ein Beamter’ FAZ (20 June 1987) 5.
265  Lamprecht (n 261).
266  Chancellery Minister Wolfgang Schäuble for the CDU, Floor Manager Gerhard Jahn for the SPD.
267  Lamprecht (n 261).
 The German Question on the Eve of Reunification 219

showed little interest and took little notice. More generally, though the institutional power
of the Court was much discussed, the prominence of individual justices was slight. In 1982,
contemporary historians published a two-volume collection of portraits of prominent per-
sonalities in the political history of the Federal Republic. The volumes did not feature a
single judge.268 Helmut Simon, a highly regarded justice whose seventeen-year term ended
in 1987, was something of a celebrity, but his renown rested more on his role in the peace
movement and his position within the Lutheran church than on his service as judge. Even
so, Simon was an exception. Most judges joined the Court quietly and kept a low profile
throughout their tenure. Few observers saw this as democratically problematic. Indeed,
throughout the history of the Bonn Republic, concerns that the Court was overly political
were sharper and more frequent than critiques that it was insufficiently democratic. A more
transparent appointments process would likely have enhanced the perception, if not the
reality, of the Court’s politicized composition.
Broader democratic critiques of the Court also faded as the Court’s position as a perma-
nent fixture of the political firmament became increasingly secure. Every politically sig-
nificant judgment that did not defer to the ruling government was followed by complaints
about the Court’s political interference, but rarely were those complaints framed in demo-
cratic terms. The ‘countermajoritarian difficulty’ that has been the obsessive concern of
American discourse about constitutional justice ever since Alexander Bickel coined that
unwieldy phrase had no significant parallel in West Germany.269
This fact reflects a substantive, value-laden definition of democracy, rather than a flaccid
valuation of it. In the midst of the 1987 negotiations over changes in the Court’s member-
ship, a leading West German constitutionalist—one not overly sympathetic to the insti-
tution of constitutional justice—published a long article in the Frankfurter Allgemeine
Zeitung entitled, ‘Without Fundamental Rights No Democracy’.270 As the Bonn Republic
approached its fortieth birthday, the phrase had become a truism. ‘Legitimation of the state
through fundamental rights’, the author explained, ‘is imaginable, and has been historically
realized, even without democratic legitimation…. But the reverse proposition—that demo-
cratic legitimation of the state is possible without fundamental rights legitimation—is, by
contrast, false’.271 The article never mentioned the Constitutional Court and was certainly
not intended as an apologia for constitutional justice. But by 1987, the perception of the
Court as the guarantor of democracy’s preconditions—and in a thick, value-laden sense,
rather than a purely procedural one—was widespread. In this regard, the proposition that
democratic legitimacy presupposed fundamental rights protection cast the Court as a kind
of ur-democratic actor. It made any challenge to the Court’s democratic legitimacy almost
a non sequitur. The near-universal embrace of this proposition represents the Court’s most
enduring achievement—the explanation and the essence of its success story.

IV.  The German Question on the Eve of Reunification

The collapse of the German Democratic Republic, as historians never tire of reminding us,
came as a wondrous surprise. Events we now narrate as precursors to reunification hardly

268 Walter L Bernecker and Volker Dotterweich, Persönlichkeit und Politik in der Bundesrepublik

Deutschland: Politische Porträts, 2 vols (Bandenhoeck & Ruprecht 1982).

269 On the history of the ‘countermajoritarian difficulty’, see Barry Friedman, ‘The History of the

Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy’ (1998) 73 NYU L Rev 333; ‘Part
Two: Reconstruction’s Political Court’ (2002) 91 Georgetown LJ 1; ‘Part Three: The Lessons of Lochner’ (2001) 76
NYU L Rev 138; ‘Part Four: Law’s Politics’ (2000) 148 U Pa L Rev 971.
270  Christian Starck, ‘Ohne Grundrechte keine Demokratie’ FAZ (19 June 1987) 12. 271 ibid.
220 Continuity, 1982–1990

seemed such to contemporaries. This includes contemporaries at the highest levels of the
West German state. Helmut Kohl, who quickly claimed (and probably deserves) the title
‘chancellor of reunification’, had hardly made reunification a foreign policy priority. Early
in his chancellorship, Kohl often invoked the imperative outlined in the Constitutional
Court’s 1973 Basic Treaty judgment that the federal government must at all times pursue
the goal of a united German state. In practice, Kohl’s Deutschlandpolitik was marked by
considerable continuity with the policies of his predecessors. In his unbending stance on
the deployment of Pershing missiles, for instance, Kohl did much more to strengthen the
Federal Republic’s military alliance with the West than to prepare the way for strengthened
ties with the East. In this regard, Kohl’s foreign policy resembled that of Adenauer, whose
mantle Kohl claimed.
At the same time, Kohl resumed, and in some respects expanded, the de facto recogni-
tion of East Germany initiated under Willy Brandt. On 7 September 1987, Kohl received a
state visit from Erich Honecker, the SED general secretary and first GDR head of state to
visit the Federal Republic. Three months earlier Ronald Reagan, speaking in front of the
Brandenburg Gate, had dramatically called on Mikhail Gorbachev to ‘tear down this Wall’.
But notwithstanding such brave talk—or histrionic bluster, as critics called it—the division
of Germany into two separate states seemed fixed for the foreseeable future.
All the same, the Federal Republic continued to pledge rhetorical allegiance to the ideal
of reunification, perhaps most conspicuously through the celebration of a national holiday,
the ‘day of national unity’, on the anniversary of an uprising of East German workers in
1953. Each year on 17 June, the West German citizenry took day trips to the countryside
or the sea while the Bundestag convened in solemn session to hear an address from a guest
speaker on some aspect of the German Question. On 17 June 1988, the thirty-fifth anni-
versary of the workers uprising, the invited speaker was Roman Herzog, chief justice of the
Federal Constitutional Court.272
Herzog began his remarks by reassuring those who feared, and disappointing those who
hoped, that he would talk about the Basic Treaty judgment. It was the Court’s business,
Herzog explained, to deliver judgments and give reasons for them, not to analyse or update
them after the fact.273 His theme, instead, was a bigger one: the moral question—Herzog
insisted it was not a political question—of what it meant in 1988, if it meant anything at all,
to speak of a German Volk. He asked, in short, what it meant to be a German.
His answer was neither novel nor satisfactory. But it was instructive as a reflection of the
spirit of the times and the mind of the chief justice. Herzog admitted that he could predict
neither when nor whether a unitary German state might be restored. But he hoped it would,
and he deemed it the moral duty of all West Germans to strive for it.274 If and when reuni-
fication came about it would not be on the basis of common language or culture or any of a
host of categories enumerated in public law scholarship, but rather (quoting Renan) on the
basis of a ‘daily plebiscite’, a union of feeling among a people who read the same books, sang
the same songs, and entertained the same thoughts of freedom.275 Herzog exhorted West
German youth to promote such unity by visiting the GDR as often as possible and for as long
as possible, sharing books and ideas and music with their contemporaries behind the Iron
Curtain.276 ‘A nation without the will for a state of its own’, Herzog added, ‘is an absurd-
ity’.277 Herzog clearly intended his address as a call to strengthen that will.

272  For Herzog’s remarks, see Verhandlungen des Deutschen Bundestages. Stenographische Berichte, vol 145

(1988) 5775–80.
273 ibid 5775. 274  ibid 5776–77. 275 ibid 5779. 276 ibid. 277 ibid 5778.
 The German Question on the Eve of Reunification 221

It was a telling commentary on the Court’s position in state and society that Herzog was
asked to give the speech at all. In an era when many commentators observed that the Federal
Republic was ‘taking leave of its provisionality’ (Abschied vom Provisorium), the Court had
assumed a particular aura of permanence. Herzog’s speech was an emblem of the Court’s
central position in the no-longer-provisional state. The address was reported on the front
page of the daily press, in one instance under the headline, ‘The German Question Can Be
Framed Anew’.278 As noted, Herzog insisted that the German Question was a moral rather
than a political question. But it also had various legal ramifications, and in the last days of
the Bonn Republic, the Constitutional Court itself was much occupied with the technical
legal questions of what it meant to be a German citizen and what rights flowed from that
status.
The Basic Law spoke of ‘German citizenship’ (deutsche Staatsangehörigkeit) but did not
clarify who possessed it or who could confer it. In an October 1987 judgment—issued a
month after Honecker’s visit to Bonn—the Second Senate addressed whether the Federal
Republic must recognize as ‘German citizenship’ the citizenship granted by the German
Democratic Republic. 279 The complainant, son of Italian parents, was born in Sachsen
in 1940. After the War, he lived in the GDR and became a citizen of that state. In 1967,
the Italian consulate in (West) Berlin granted him Italian citizenship as well, on the
basis of which he emigrated to West Germany. In 1969, the complainant submitted a
petition to municipal administrators in Cologne, which was rejected on the ground that
the complainant was not a German citizen. That rejection was ultimately confirmed by
the Federal Administrative Court, which ruled that the complainant was an Italian,
not a German, citizen. Shortly thereafter, the complainant challenged this ruling in
Karlsruhe.
And there the appeal sat unanswered for many, many years. Only eighteen years after the
Cologne authorities rejected the complainant’s petition did the Second Senate reverse that
rejection. The Senate held that the administrative decision deprived the plaintiff of German
citizenship—a deprivation that Article 16(1) GG banned in all but exceptional circum-
stances. As a precondition to this holding, of course, the Senate ruled that the complainant
was a German citizen, that is, that the GDR’s conferral of citizenship must be recognized
in the Federal Republic as well. This finding was consistent, the Senate explained, with
the precept of the Basic Treaty judgment that the GDR was ‘not a foreign country’ (nicht
Ausland) and that its acts must not be regarded as those of a foreign power. Sovereign acts of
the German Democratic Republic could be ignored in the Federal Republic only when they
ran counter to the West German legal order.
Under international law, the Senate admitted, individual states were forbidden unilat-
erally to recognize citizens of other states as their own. This principle could be overridden
only by special considerations, but the Senate found one in the fact that the GDR’s separ-
ation from the Federal Republic was not a product of democratic self-determination. Until
GDR citizens determined their own fate, there could be no objection under international
law if the Federal Republic treated those citizens, in this regard, as its own. Like the Basic
Treaty judgment, this holding presumed the perpetuation of the German Reich. The Reich
endured; as a result, there were still ‘German citizens’ outside the Federal Republic.

278  ‘Herzog: Deutsche Frage kann sich neu stellen’ Süddeutsche Zeitung (18 June 1988). See also ‘Herzog: Eine

Nation ohne den Willen zum eigenen Staat ist ein Unding’ FAZ (18 June 1988) 1; ‘Eine Nation ohne den eigenen
Willen zum Staat ist ein Unding’ Die Welt (18 June 1988); ‘Herzog: In Deutschland sind die leisen Töne gefragt’
Frankfurter Rundschau (18 June 1988).
279  77 BVerfGE 137 (1987).
222 Continuity, 1982–1990

The decision was nearly unanimous. Wolfgang Zeidler, in the twilight of his tenure as
chief justice, appended the shortest dissent in the Court’s history: ‘I do not agree with the
decision’, he wrote. Posterity can only guess why not. Zeidler’s tenure with the Court ended
the following month. At sixty-three, Zeidler looked forward to continuing his work of cul-
tivating ties among national constitutional courts and promoting the study of comparative
constitutional law. Tragically, however, he died in a hiking accident on New Year’s Eve, 1987.
The Left–Liberal press, often sharply critical of the Social Democrat Zeidler, now struck a
softer town. His judicial philosophy, reported Die Zeit, could be summarized as, ‘When in
doubt, vote for the state’, but the state he had in mind was always a democratic state devoted
to the rule of law.280 It was the state that, on the eve of reunification, many West Germans
associated with the watchful guardianship of the Federal Constitutional Court.
What came in time to be called the Teso judgment (after its Italian-German plaintiff) was
one of Zeidler’s last. It was a striking judgment, if not altogether surprising. It had, however,
a short shelf-life. The question whether ‘German’ citizenship in the GDR automatically sup-
plied ‘German’ citizenship in the Federal Republic was, soon overtaken by events.

280  ‘Im Zweifel für den Staat’ Die Zeit (8 January 1988) 8; see also ‘Gestorben: Wolfgang Zeidler’ Der Spiegel

(11 January 1988) 178.

 5
Karlsruhe Republic, 1990–2001
The fear that a new, pan-German constitution would be less liberal than the Basic
Law is justified not least by reference to the judgments of the Federal Constitutional
Court…. Whoever wishes to abandon the Basic Law in favor of a vague new consti-
tution must realize that in that case the entire Karlsruhe jurisprudence, the entire
constitutional-judicial armory of our fundamental rights, would be lost. The Karlsruhe
judgments would drift as scrap paper into the archives.
—Robert Leicht1

The Karlsruhe judges have helped to ease the internal tensions of West Germany…. If
the former GDR accedes to the Basic Law, the many volumes of Karlsruhe decisions
will remain in force. The question is whether Karlsruhe’s jurisprudence can carry on
as it has till now.
—Wilhelm Hennis2

The decisive question is, to whom should it be granted—in the context of democ-
racy and of the Rechtsstaat, of political and civil liberty—to shape the legal order….
[D]‌oes the citizen place his trust in the elected parliamentary legislature, or in the
Constitutional Court?
—Justice Ernst-Wolfgang Bӧckenfӧrde3

Introduction
The ‘German Question’ is as protean as it has been intractable. It never goes away; it only
changes form. The fall of the Berlin Wall in November 1989 placed the German Question
once more at the centre of European and global politics.
For most citizens of the Federal Republic, the collapse of the Wall, and of the regime
that built and policed it, came as a bolt from the blue. The dizzying events of autumn
1989 ­followed close on the heels of the Federal Republic’s fortieth anniversary celebra-
tions. Broadly speaking, the tone of these celebrations was one of tempered triumphalism.
The Bonn Republic was proclaimed Germany’s ‘first enduring republic’, its first success-
ful democracy.4 Since the mid-1980s, German publicists had questioned the traditional
understanding of the Federal Republic as a ‘provisional’ state.5 After forty years, the Basic
Law seemed provisional no longer. It was a full-fledged constitution, a central element of
the Federal Republic’s success story. As Hans Peter Ipsen wrote in a fortieth-anniversary
summation for the Jahrbuch des ӧffentlichen Rechts, ‘The Basic Law, which emerged as a

1  Robert Leicht, ‘Einheit durch Beitritt’ in Bernd Guggenberger and Tine Stein (eds), Die Verfassungsdiskussion

im Jahr der deutschen Einheit (Carl Hanser 1991) 192 (hereinafter Verfassungsdiskussion).
2  Wilhelm Hennis, ‘Die Chance einer ganz anderen Republik. Zur Verfassung des zukünftigen Deutschland’

in Verfassungsdiskussion (n 1) 115.
3  In Thomas Darnstӓdt, ‘Mir hat keiner was zu sagen’ Der Spiegel (17 May 1999).
4  See, e.g., Hans Schueler, ‘Die erste Republik von Dauer’ Die Zeit (19 May 1989).
5  See, e.g., Josef M.  Hӓusling and others (eds), Drei Fragen zu Deutschland (Knaus 1985); Wilfried von

Bredow, Deutschland—ein Provisorium? (Siedler 1985); see also Andreas Wirsching, Abschied vom Provisorium,
1982–1990 (Deutsche Verlags-Anstalt 2006).
224 Karlsruhe Republic, 1990–2001

provisional, “interim” constitution, has proved itself over four decades to be a solid foundation
for a stable and efficient order. Under its aegis, peace has been preserved, freedom guaranteed,
and prosperity disseminated’.6
Given the Basic Law’s perceived place in the West German success story, it was no surprise
that many commentaries on the Federal Republic’s fortieth anniversary invoked the ideal of
‘constitutional patriotism’. As noted in the last chapter, the political scientist, Dolf Sternberger,
had coined the phrase in a prominent 1979 essay.7 Seven years later, Jürgen Habermas adduced
the term in a dramatic essay that launched an Historikerstreit that dominated the West German
public sphere during the latter years of the 1980s.8 Habermas’s salvo was aimed at revision-
ist historians who, in Habermas’s view, sought to relativize the crimes of Nazism by placing
them in the context of—or even casting them as a response to—other mass crimes of the twen-
tieth century. For Habermas, by contrast, the Holocaust remained unique, historically and
even metaphysically. Germany could never be a ‘normal’ nation with a normal past. Indeed,
Germany’s redemption lay precisely in its transcendence of nationality. ‘The unconditional
opening of the Federal Republic to the political culture of the West’, Habermas wrote, ‘is the
great intellectual achievement of the postwar era, about which my generation in particular
may be proud’.9 That achievement would be endangered by any tincture of resurgent German
nationalism. ‘The only patriotism that will not alienate us from the West’, Habermas added,
‘is a constitutional patriotism’, by which he meant devotion to ‘universal constitutional prin-
ciples’—a devotion that could develop ‘in the cultural nation [Kulturnation] of the Germans
only after—and through—Auschwitz’.10 The great achievement of the Federal Republic was its
rejection of Germany’s Sonderweg and its embrace of the universal constitutional values that
Habermas associated with ‘the West’. This, for Habermas, must be the foundation of constitu-
tional patriotism for citizens of the Federal Republic.
Neither Sternberger nor Habermas linked constitutional patriotism to the text of the
Basic Law.11 For Sternberger, neither the concrete provisions of the Basic Law nor the
Constitutional Court’s juristic definition of the free democratic basic order could stir
the hearts and inspire the loyalties of ordinary citizens. Sternberger’s conception of consti-
tutional patriotism centred instead on a Hegelian notion of political morality (Sittlichkeit)
designed to promote citizen devotion to the constitutional state (Verfassungsstaat).12
Habermas, by contrast, emancipated constitutional patriotism from the state altogether,
gesturing instead toward post-national universalism. But such theoretical refinements were
surely lost on the citizens who were supposed to experience constitutional patriotism. The
development of constitutional patriotism in the Federal Republic—always a modest, man-
nerly phenomenon—was surely, in practice, associated with the Basic Law and abetted by
the broader ‘success story’ (Erfolgsgeschichte) of the Federal Republic. No causal connection
could ever be established between the enactment of the Basic Law and the impressive stabil-
ity and astonishing prosperity of the Federal Republic. But the concomitance surely worked
to the benefit of the Basic Law—and of its judicial guardians.13

6 Hans Peter Ipsen, ‘40 Jahre Grundgesetz der Bundesrepublik Deutschland’ (1989) 38 Jahrbuch des

ӧffentlichen Rechts der Gegenwart 1, 40.

7  See Dolf Sternberger, ‘Verfassungspatriotismus’ FAZ (23 May 1979).
8  See Jürgen Habermas, ‘Eine Art Schadensabwicklung: Die apologetischen Tendenzen in der deutschen

Geschichtsschreibung’ Die Zeit (11 July 1986).

9 ibid. 10 ibid.
11 For an extended treatment of the concept of ‘constitutional patriotism’, see Jan-Werner Müller,

Constitutional Patriotism (Princeton University Press 2010).

12  See the discussion in Jan-Werner Müller, Another Country: German Intellectuals, Unification and National

Identity (Yale University Press 2000) 93–98.

13  Naturally, the concept, and reality, of constitutional patriotism had its enemies, especially among those

who worried that constitution worship had warped Germans’ understanding of the state. See J. Isensee, Die
 Introduction 225

The Federal Republic’s fortieth anniversary was marked by affirmations and expres-
sions of constitutional patriotism.14 Some observers linked the spread of constitutional
patriotism in the Federal Republic to the Constitutional Court’s careful guardianship of
fundamental rights, while at the same time noting regretfully the resultant ‘judicializa-
tion’ (Juridifizierung) of German politics.15 But constitutional patriotism might not have
run so deep or so far as some anniversary rhetoric suggested.16 And the Constitutional
Court’s immense influence and prestige were more precarious than anyone supposed.
The process of reunification would test both constitutional patriotism and faith in the
Constitutional Court.
This was true in part because reunification unsettled or abolished many of the precon-
ditions on which the Court’s successful rise had long been nourished. Over the life of the
Bonn Republic, the Basic Law—and the Court as its official guardian—had become a sym-
bol of West Germany’s break with the Nazi past, its reentry into the community of civilized
nations, its advantageous contrast with the GDR to the East. With reunification, the process
seemed to have come full circle. Many of the political and societal factors that contributed
to the Court’s early rise—skepticism of majoritarian rule and political parties; respect for
authority but mistrust of politicians; the unavailability of traditional sources of societal
integration such as history, nation, and culture—faded after reunification or had departed
long since.17 In hindsight, it seemed to some that the years following reunification exposed
the fact that the Court had passed its zenith, that its Golden Age was over, that it had begun
a slow and lengthy decline.18
But the aftermath of reunification also underscored the Court’s centrality to the Federal
Republic’s political order, as well as its crucial integrationist role in united Germany. If
reunification marked the beginning of the Court’s decline, it also inaugurated a process by
which the Berlin Republic, like its Bonn predecessor, would come to bear the impress of the
Karlsruhe Court.
The peculiar path to German reunification gave the German Question, in its first
post-Cold War iteration, a uniquely constitutional flavour. The question was multi-faceted.
Its first prong asked whether there would be a united Germany at all. The collapse of the
SED regime did not automatically entail the end of the GDR and the union of East and
West. Indeed, many leaders of East Germany’s ‘peaceful revolution’ dreamed, not of unity
with the Federal Republic, but of a new constitutional order of their own—one that charted
a ‘Third Way’ between the communist East and the capitalist West. This, of course, was
the same dream that inspired republican intellectuals during the early years of the Federal
Republic.19
The weeks and months following 9 November 1989 witnessed major initiatives of con-
stitutional reform within East Germany. The most dramatic of these was a proposal put
forth by a ‘round table’ of East German notables for a liberal constitution with a peculiarly

Verfassung als Vaterland. Zur Staatsverdrӓngung der Deutschen in Armin Mohler (ed), Wirklichkeit als Tabu.
Anmerkungen zur Lage (Oldenbourg 1986) 11.
14  See Karl Dietrich Bracher, ‘Kein Anlaβ zu Teuto-Pessimismus’ Süddeutsche Zeitung (24 May 1989).
15  See Hans Schueler, ‘Die erste Republik von Dauer’ Die Zeit (19 May 1989).
16  See Müller (n 11) 98.
17 These themes have been thoughtfully developed by Dieter Grimm. See Dieter Grimm, ‘Hütet die

Grundrechte’ Die Zeit (18 April 1997) 14; Dieter Grimm, ‘Integration durch Verfassung’ (2004) 32 Leviathan 448;
see also Christoph Schӧnberger, ‘Anmerkungen zu Karlsruhe’ in Matthias Jestaedt and others, Das Entgrenzte
Gericht. Eine Kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht (Suhrkamp 2011) 43–48.
18  See Schönberger (n 17) 57.
19  See A Dirk Moses, German Intellectuals and the Nazi Past (Cambridge University Press 2006).
226 Karlsruhe Republic, 1990–2001

Eastern flavour.20 But this proposal and others like it were soon overtaken by events. On
18 March 1990, in East Germany’s first free elections, the Party of Democratic Socialism
(PDS)—a successor to the fallen SED—was roundly defeated. A grand coalition led by the
CDU’s Eastern partner formed swiftly on a platform of speedy reunification. From that
point on, the die was cast. Sooner or later, East and West would become one. Reunification
was only a matter of time.
But it was also a question of means. That the sections would unite seemed certain; when
and how were hotly debated. For a time, many called for a pan-German confederation, held
together by treaty, rather than full political union. This solution was favoured by important
figures within the ‘round table’ movement and was advocated by two constitutional judges,
Dieter Grimm and Ernst-Wolfgang Bӧckenfӧrde—the intellectual titans, respectively, of
the Court’s First and Second Senates—in an important article in Der Spiegel.21 But the 18
March elections clearly signalled an East German desire for complete merger.
The Basic Law envisioned two routes to such an end—one inscribed in Article 23 GG,
the other in Article 146. Article 23 provided that the Basic Law would apply initially in
certain named states, but provided also that ‘other parts of Germany’ could accede to
it. The Article 23 route to reunification would allow the several sections of the former
GDR to accede to the Basic Law as the newest states of the Federal Republic. The Article
146 route was more sweeping. Article 146 provided that ‘[t]‌his Basic Law shall cease to
apply on the day on which a Constitution [Verfassung] freely adopted by the German
people takes effect’. The Article 146 route, then, required adoption of a new, pan-German
constitution by the united German people—or at least some popular ratification of the
Basic Law.
Public debate over which route to take was impassioned, if not widespread.22 In the end,
the Article 23 option prevailed. Leading politicians saw in it the swiftest, surest path to
reunification. Justice Grimm had urged that casting the debate as ‘Article 23 versus Article
146’ presented a false dichotomy—that it was possible (and desirable) to seize the political
moment with a rapid unification under Article 23 followed by a pan-German constitutional
assembly convened under Article 146.23 In the event, however, reunification under Article
23 was not followed by a new constitution under Article 146. Instead, by a formal act of uni-
fication on 3 October 1990, five new states in the former East Germany acceded to the Basic
Law as the twelfth through sixteenth states of the Federal Republic. The Federal Republic
subsumed its Eastern neighbour, and the Basic Law became the fundamental charter for all
Germany. United Germany emerged as a constitutional order never ratified—not in 1949
and not in 1990—by the citizens who would be ruled by it.
For many Germans, the process was bitterly disappointing. Many Easterners felt unfairly
excluded from the process. Leading Western intellectuals were equally dismayed. Jürgen
Habermas had hoped that a popular referendum regarding reunification would foster a
renewed republican consciousness in the Federal Republic. Instead, he saw reunification as
a process in which Chancellor Kohl ‘and his kitchen cabinet’ had ‘managed to outmaneuver

20  For summaries of the ‘Round Table’ proposals, see Wolf Templin, ‘Der Verfassungsentwurf des Runden

Tisches. Hintergründe und Entstehungsbedingungen’ (1990) 41 Gewerkschaftliche Monatshefte 370; Ulrich

K Preuβ, ‘Auf der Suche nach der Zivilgesellschaft. Der Verfassungsentwurf des Runden Tisches’ FAZ (28
April 1990).
21  Ernst-Wolfgang Bӧckenfӧrde and Dieter Grimm, ‘Nachdenken über Deutschland’ Der Spiegel (5 March

1990) 72.
22  For a sampling, see the essays in Verfassungsdiskussion (n 1).
23  See Dieter Grimm, ‘Zwischen Anschluβ und Neukonstitution. Wie aus dem Grundgesetz eine Verfassung

für das geeinte Deutschland werden kann’ FAZ (5 April 1990) 5.

 Introduction 227

both the deeply divided opposition and the public sphere’.24 Habermas, the great theo-
rist of the public sphere, was chagrined that reunification was realized outside the public
sphere. It was a process powered by ‘economic nationalism’, one that ‘never won any demo-
cratic dynamic of its own’.25 Other Left-leaning intellectuals objected that the process was
one-sided—that East Germans had been ‘treated more as objects of West German policy
than as equal partners in a common project’.26 Many agreed that the process had been too
hurried.27 Some contended that it lacked legitimacy.28
Throughout the reunification debates, some of the most powerful voices calling for
greater popular involvement and greater sensitivity to Eastern interests belonged to cur-
rent and former justices of the Constitutional Court. Helmut Simon, for instance, whose
long and influential career with the Court had ended in 1987, saw German unification
as a once-in-a-century opportunity for passionate popular engagement in constitutional
self-determination. Stunningly, instead, the powers that be had embraced the ‘abashed
solution’ [Verlegenheits lӧsung] of the Article 23 route, which was really a cover for ‘eco-
nomic and power-political interests’. Reunification, alas, had become a ‘state of exception’
that degenerated into an ‘hour of the executive’.29 In an essay subtitled, ‘Every Constitution
Requires the Express Approval of its Citizens’, Ernst Gottfried Marhenholz, the Court’s
sitting vice president, trumpeted emphatically the people’s right to ratify their new (or
their old) constitution.30 Even after reunification via Article 23 was an accomplished fact,
Mahrenholz called for broad popular discussion of potential revisions to the Basic Law.
Roman Herzog, the chief justice, wished to inject more plebiscitary elements into the
Basic Law.31
Ironically, while the justices themselves were sounding themes of popular
self-determination, some of those most strongly opposed to the Article 146 route insisted
that a new constitutional assembly couldn’t possibly improve on the work of the parliamen-
tary council that framed—or of the Constitutional Court that expounded—the Basic Law.
Robert Leicht, in an essay tellingly subtitled ‘A New Constitution Can Only Get Worse’,
warned that replacing the Basic Law meant jettisoning the Court’s jurisprudence ‘as scrap
paper into the archives’.32 But the justices themselves were less proprietary. For one thing,
it was almost unimaginable that a new constitution, whatever its other innovations, would
scrap or cripple the Constitutional Court. Moreover, if the Court continued (as it surely
would) under a new constitution, it would continue with its precedents and interpretive
methodologies intact. The proportionality test and the nearly ninety volumes of constitu-
tional jurisprudence would endure.
But beyond all this, many of the justices believed passionately that the constitution they
were commissioned to enforce and interpret required, by its own terms, popular legiti-
mation. To say that a new constitution would be worse than the old was to express basic

24  Jürgen Habermas, The Past as Future (Max Pensky tr, University of Nebraska Press 1994) 41.
25  Jürgen Habermas, ‘Der DM-Nationalismus’ Die Zeit (30 March 1990); Habermas (n 24) 41; see also Müller,
Another Country (n 12) 100.
26  Moses (n 19) 229.
27  See Konrad Jarausch, The Rush to German Unity (Oxford University Press 1994).
28  See Peter Graf Kielmannsegg, ‘Vereinigung ohne Legitimitӓt?’ (1992) 46 Merkur 561.
29 Helmut Simon, ‘Markierungen auf dem Weg zu einer neuen gesamtdeutschen Verfassung’ in

Verfassungsdiskussion (n 1) 140–41.
30  Ernst Gottfried Mahrenholz, ‘Das Volk muβ “Ja” sagen kӧnnen. Jede Verfassung braucht die ausdrückli-

che Zustimmung der Staatsbürger’ Die Zeit (14 September 1990) 13. See also Ernst Gottfried Mahrenholz, Die
Verfassung und das Volk (Carl Friedrich von Siemens Stiftung 1992).
31  See ‘Verfassungsrichter Mahrenholz wünscht breite Grundgesetzdiskussion’ Der Rheinpfalz (8 January

1991); ‘Herzog befürwortet mehre direkte Demokratie’ Der Tagesspiegel (21 April 1991).
32  Robert Leicht, ‘Einheit durch Beitritt’ Die Zeit (23 February 1990, 2/3 March 1990).
228 Karlsruhe Republic, 1990–2001

mistrust in the people from whom the state, by the Basic Law’s express declaration, derived
all authority. In this regard, the Article 23 route struck some justices as a failure of nerve.
Two decades after Willy Brandt vowed to ‘dare more democracy’, Dieter Grimm advocated
such daring in the constitutional context. Grimm championed a ‘risk-taking democracy’,
one with the courage to convene a new parliamentary council to craft a new constitution for
united Germany.33
Calls for a new constituent assembly—whether from the justices or from others—fell, for
practical purposes, on deaf ears. For politicos straining under the squeeze of time and pres-
sure of events, the central imperative was to effect reunification in the swiftest, simplest,
most straightforward fashion possible. That meant the Article 23 route, however disap-
pointing that route was to citizens East and West. There would be time enough later on for
the expanded Federal Republic to adjust to its increased size, to accommodate its expanded
economic strength and geopolitical heft, and to resolve its wrenching internal tensions.
Such challenges could not, of course, be put off indefinitely. With the accession of the
five Eastern states, the Federal Republic had become, by orders of magnitude, more per-
manent, more powerful, and more problematic. By its mere existence, the new central
European colossus would press the German Question with unwearied insistence upon a
wary world.
The Question, as ever, was double-edged; it pointed outwards like a sword and inwards
like a dagger. What would a reunited Germany mean for the world? What would it mean
for the Germans themselves? What role would the new Federal Republic assume among the
community of nations? What role, if any, would the German people play in shaping the con-
stitutional contours of the new republic? In the years following reunification, these broad
abstractions found concrete articulation in specific constitutional controversies, the arbiter
of which was, as always, the Federal Constitutional Court.
It has been suggested earlier in these pages that the effect, or at least the aspiration, of
the Basic Law and of the Court’s interpretation of it was to correct the course of Germany’s
Sonderweg—to reclaim the German state from its special historical path and to realize in
postwar West Germany the Liberal Democratic Republic that had proved unachievable to
the Frankfurt patriots of 1848 or the Weimar revolutionaries of 1919; the Republic that had
been traduced by Prussian militarists in the nineteenth century and incinerated by Nazi
marauders in the twentieth. Whether there ever was a German Sonderweg has always been
sharply contested.34 But the framers of the Basic Law clearly crafted the Federal Republic’s
charter with a keen eye to the ‘errors’ of the past, with an anguished awareness of what AJP
Taylor called the turning-points at which Germany ‘failed to turn’.35
In its interpretation of the Basic Law, the Constitutional Court seemed also to have its
eye on the Germany that might have been. Certainly the Court played a crucial role in the
founding and flourishing of liberal democracy in the Bonn Republic. In doing so, as we have

33  Dieter Grimm, ‘Das Risiko Demokratie. Ein Plӓdoyer für einen neuen parlamentarischen Rat’ Die Zeit (10

August 1990) 34.
34  See, e.g., Geoff Eley and David Blackbourn, The Peculiarities of German History: Bourgeois Society and

Politics in Nineteenth-Century Germany (Oxford University Press 1984); Anselm Doering-Manteuffel, Wie west-
lich sind die Deutschen? Amerikanisierung und Westernisierung im 20. Jahrhundert (Vandenhoeck and Ruprecht
1999); Heinz Bude and Bernd Greiner (eds), Westbindungen:  Amerika in der Bundesrepublik (Hamburger
Edition 1999); Heinrich August Winkler, Der lange Weg nach Westen, vol 1 (CH Beck 2000) 1; Philipp Gassert,
‘Die Bundesrepublik, Europa und der Westen: Zur Verswestlichung, Demokratisierung und einigen kompa-
ratistischen Defiziten der zeithhistorischen Forschung’ in Jӧrg Baberowski and others, Geschichte ist immer
Gegenwart: Vier Thesen zur Zeitgeschichte (Deutsche Verlags-Anstalt 2001) 67.
35  AJP Taylor, The Course of German History, 2nd edn (Routledge 1951) 68. Taylor referred to the failed revolu-

tion of 1848, but the entire Sonderweg thesis breathes the spirit of Taylor’s aphorism.
 Introduction 229

seen, the Court assumed and exercised enormous powers. With its power of abstract review,
the Court issued the last word in many of the Federal Republic’s fiercest political contro-
versies. With its doctrine of the ‘radiating effect’ of fundamental rights, the Court con-
stitutionalized all West German law and became the supreme organ of the West German
judiciary. In all of this, the Court had a profound impact on the political culture and social
order of the Federal Republic. In their role as self-proclaimed guardians of the constitution,
the justices guided the Federal Republic from its precarious infancy through an unsettled
youth and finally into democratic maturity. The continuity and composure of the Court’s
jurisprudence in the years just prior to reunification suggests that the business of reversing
or correcting the supposed Sonderweg was near its end. The liberal constitutional order of
the Federal Republic was fully formed.
Or so, to many celebratory orators in the summer of 1989, it seemed. As we shall see,
the aftermath of reunification would test this proposition. But the proposition itself would
test the Constitutional Court. If the Federal Republic had indeed arrived at democratic
maturity and taken its place among the community of liberal democracies, what further
need did the country have for a powerful constitutional court that would shape, and some-
times constrain, its democratic process? If the Sonderweg was over, what need for a Court
to correct it? Perhaps the Court had outlived its usefulness—or at least its crucial neces-
sity. Perhaps the Federal Republic’s citizens and their elected representatives required less
oversight. Perhaps it was time for the Court to play a diminished role. After all, don’t only
minors need guardians?
These questions will be revisited in the Epilogue. In the period that now concerns us they
were hurled to one side by the seismic shifts of reunification. With reunification came the
jolting realization that Germany’s division had itself been a kind of Sonderweg, a continu-
ation and consequence of the broader Sonderweg, traditionally understood. Tellingly, the
events surrounding reunification immediately provoked a vigorous public discussion of
the Sonderweg thesis. In a series of high profile articles in Die Zeit, the most thoughtful
proponents of the Sonderweg thesis—including some of the most prominent historians in
the Federal Republic—warned that reunification could lead, if Germans were not careful, to
another Sonderweg, or an unfortunate return to the old one.36 The challenge for the Federal
Republic was to unite the two strands of Germany’s postwar path—or rather to reconcile
the Eastern strand with the grand narrative of the Western—while reaffirming the liberal
democratic values that had allowed the Federal Republic to escape from Germany’s (puta-
tive) special path. The work, as we shall see, was imperfectly and incompletely done. That it
was done at all ranks among the most important post-Cold War achievements of the Federal
Constitutional Court. It was through the work of the Karlsruhe justices that citizens of the
former GDR—excluded from defining the constitutional terms of reunification—could
identify themselves, in a limited degree, with the constitutional order of the new Federal
Republic.
But the decade of reunification was hardly one of uninterrupted triumphs for the Court.
Indeed, the middle of the decade witnessed the Court’s greatest crisis since its founding. For
the first time, prominent politicians not only criticized but breathed defiance to Court deci-
sions, calling on citizens to engage in the closest thing to ‘massive resistance’ the Federal
Republic had ever seen. Some observers worried, and others crowed, that the era of the
Court’s preeminence was over.

36  See Heinrich August Winkler, ‘Mit Skepsis zur Einigung’ Die Zeit (28 September 1990); Jürgen Kocka, ‘Nur

keinen neuen Sonderweg’ Die Zeit (19 October 1990); Hans-Ulrich Wehler, ‘Wieder den falschen Apostel’ Die
Zeit (9 November 1990).
230 Karlsruhe Republic, 1990–2001

The prognosis proved premature. The Court would weather this crisis, as it had ear-
lier challenges to its authority. It did so largely because the perception endured that the
Court, though it periodically encroached on the powers of democratically appointed actors,
enhanced democracy in other ways—defending at times the prerogatives of Parliament and
vindicating, at other times, the fundamental rights of individual citizens. Constitutional
Court justices, in their private capacity, called for popular adoption of a pan-German
constitution when leading politicians were skittish about that prospect. And in their offi-
cial capacity, the justices raised concerns about the democratic deficiencies of European
integration when, for many major party leaders, that topic was taboo. When the Federal
Republic marked its fiftieth anniversary in May 1999, and when the Court observed its own
golden jubilee in September 2001, most retrospective assessments rated the Court’s contri-
bution to the Federal Republic as invaluable.
Such celebratory paeans might have obscured, but they did not eliminate, the fact that
perhaps the Court had indeed entered a period of slow decline. But that, too, is a matter for
the Epilogue. This chapter focuses on the Court’s role in mediating the wrenching inter-
nal tensions of reunification. Reunification provided the immediate or deep backdrop to
most of the Court’s major decisions throughout the 1990s. This chapter discusses four
categories of cases. Part One deals with those cases that addressed issues raised directly
by reunification—those cases that required the Court to engage directly with one facet or
another of ‘the German Question’. Part Two deals with questions of bio-politics and social
policy. Even before reunification, many West Germans called for revision of the civil code
to provide greater equality for women. Some pointed to provisions of East German law that
seemed progressive by comparison. After reunification, the question became even more
urgent—particularly with regard to abortion law, an area in which the laws of the GDR and
the Federal Republic were irreconcilably opposed. Part Three discusses freedom of con-
science and freedom of speech. Reunification vastly enhanced the ideological and religious
complexity of the Federal Republic, and the events that toppled the SED regime highlighted
dramatically the power of speech and assembly. After reunification, activists pushed to
strengthen fundamental rights protections in all these areas. The Court responded, but in
the process flung itself into its greatest institutional crisis since the early 1950s. Finally, Part
Four analyses matters of foreign policy—the excruciating constitutional dilemmas created
by Germany’s enhanced geopolitical role.
In all of this, the Court was more inclusive of East German interests than any other consti-
tutional organ of the Federal Republic. Perhaps ironically, on questions of German unifica-
tion and European integration, the Court was also the most vocal champion of democratic
principle and popular sovereignty. The Court continued to provide a check—sometimes a
very aggressive check—on the representative legislature; but the Court also bolstered pro-
tections for political speech and citizen protest. When the Court’s authority was challenged,
some justices entered the public sphere themselves to engage the citizenry that would be
subject to their decisions. The decade of reunification was as challenging for the Court as
any that preceded it, and the Court did not emerge from it unscathed. But the Court’s very
political crisis called attention to its historical contributions.37 Though the public’s trust
in the Court sank dramatically in the short run and slightly in the long run, the Court
remained, as it entered its sixth decade, the most trusted institution of the German state. To
those with eyes to see, there were clouds on the distant horizon. But those clouds did little
to darken the Court’s or the country’s jubilee.

37  See Schӧnberger (n 17) 50.

 The German Question 231

I.╇ The German Question

A.╇The first pan-German elections
A crucial question for unified Germany was who would rule it and how those rulers would
be chosen. The Federal Republic’s traditional electoral rules posed prickly problems—none
pricklier than the 5 per cent parliamentary hurdle. Such a barrier to legislative entry was
unknown in the electoral law of the now-defunct GDR, as was the Federal Republic’s system
of allowing each voter two ballots. East German leaders objected loudly to the application of
the 5 per cent rule in the first post-reunification federal elections.
Their objections were rooted partly in demography, partly in chronology. At the time
of reunification there were roughly seventeen million citizens in the Eastern states; in the
Western states, the figure was sixty-two million.38 Because the first elections were sched-
uled to be held less than two months after formal reunification,39 political parties based in
the East—including those movements instrumental in toppling the SED—had little time
and slender hope to win significant votes in the West. Since the East accounted for little
more than 20 per cent of the population, the 5 per cent hurdle looked fatal for these parties.
Small Eastern parties called for the barrier to be scrapped.
After some spirited negotiation, the architects of reunification struck a deal. The 5 per cent
hurdle would remain in place, but small Eastern parties could overcome it by ‘piggybacking’
on the electoral returns of a Western partner.40 The Eastern German Social Union (DSU),
for instance, could add its tally to that of its Bavarian partner, the CSU, and thereby clear
the hurdle. The compromise thus promised to propel some Eastern parties into Parliament.
The rub was that parties unable to find a partner were sure to be excluded. The most notable
of these was the Party of Democratic Socialism (Partei des Demokratischen Sozialismus, or
PDS), the re-baptized successor to the SED. A pariah to Western parties, the PDS had no
hope of finding a partner and, as a result, little hope of entering Parliament—this notwith-
standing its potentially greater electoral strength than parties such as the DSU that were
sure to enter Parliament on the back of a Western partner. The PDS and other parties disad-
vantaged by the compromise challenged the law in a constitutional complaint.
It was ironic that the successor party to the SED, which through its press organs and in its
official pronouncements had railed for decades against the Karlsruhe justices, should imme-
diately invoke the Court’s protection. It was an added irony that the complaint succeeded.
In a judgment dated 29 September 1990, the Second Senate ruled that the amended elec-
toral law violated the principles of electoral equality and equal opportunity for political
parties.41 These principles afforded the legislature ‘only a narrowly limited leeway’ to dif-
ferentiate among parties.42 Any differential treatment required compelling justification.43
Promoting government stability by preventing the proliferation of splinter parties was one
such ground, as the Court had noted when it approved the 5 per cent rule previously.44 But
the justices now clarified that this earlier imprimatur was not valid as an abstract matter

38╇ Statistisches Jahrbuch der Deutschen Demokratischen Republik, Zeitschriftenband (1989) 45  <http://www.

digizeitschriften.de/dms/img/?PPN=PPN514402644_1988andDMDID=dmdlog5andLOGID=log5andPHYSID
=phys45#navi>; Statistisches Jahrbuch für die Bundesrepublik Deutschland, Zeitschriftenband (1990) 43. <http://
www.digizeitschriften.de/dms/img/?PPN=PPN514402342_1990andDMDID=DMDLOG_0012andLOGID=LOG_
0016andPHYSID=PHYS_0042#navi>.
39╇ Reunification was formalized on 3 October 1990; the elections were scheduled for 2 December of the

same year.
40╇ The compromise mixed metaphors and made them inexact: piggyback rides make hurdling harder.
41╇ 82 BVerfGE 322 (1990). 42╇ibid 338. 43╇ibid. 44╇ibid 334.
232 Karlsruhe Republic, 1990–2001

for all time.45 New circumstances required reassessment, and the Court concluded that the
new law, both by placing the parties of the East at a disadvantage vis-à-vis the parties of the
West and by placing some Eastern parties at a disadvantage vis-à-vis others, had run afoul
of core constitutional principles. As a result, the law could not stand. But rather than send
the legislature back to the drawing board nine weeks before the scheduled election, the jus-
tices concluded with a powerful nudge. The 5 per cent hurdle could be applied, but only—for
this first election at least—on a regional level. Eastern parties could enter Parliament if
they garnered 5 per cent of the votes within the five Eastern states; Western parties if they
secured 5 per cent or more among the eleven states of the West. Only such regional differ-
entiation could preserve the 5 per cent rule while honouring the requirements of equality.
It was a bold judgment—one that prefigured the integrationist role the Court would
play in incorporating the Eastern states into the new polity. Some observers sniped, how-
ever, that the outcome would benefit the CDU by excluding the Greens and preventing an
SPD–Green alliance.46 And this is, in fact, what happened. The Western Greens won only
4.8 per cent of the Western votes, and thereby failed to enter the Bundestag. In the East,
however, the union of the Greens with the Bündis 90 movement won 6.2 per cent of the
Eastern votes, yielding eight seats in the now 662-member chamber. Only two of these eight
seats went to the Eastern Greens, who merged on the day after the election with the Greens
in the West. Had the originally planned compromise rules applied, the Green–Bündnis 90
partnership would have entered the Bundestag with 5.1 per cent of the national vote. The
PDS, by contrast, won only 2.4 per cent of the national vote, but nearly all of those votes
came in the East, allowing the party to clear the regional hurdle comfortably and to enter
Parliament with seventeen seats. The Republicans party, a Right-wing splinter from the
Bavarian CSU, won 2.1 per cent of the national vote, but nearly all of it in the West. Both
of the great Volksparteien suffered predictable losses with respect to the 1987 outcome, but
the SPD, which dropped from 37 per cent to 33.5 per cent, lost considerably more than the
Union parties, which fell from 44.3 per cent to 43.8 per cent. Only the FPD grew in strength,
ascending from 9.1 per cent in 1987 to 11.0 per cent in 1990. The upshot was a comfortable
Union–Liberal majority (398 seats of 662).
In the years that followed, the PDS made impressive and surprising gains. The party owed
its growth largely to the growing (and justified) perception among Easterners that their
interests were of little moment to the traditional parties. In the run-up to the 2005 federal
election, the Left wing of the increasingly centrist SPD defected to the PDS and formed the
new Left Party. With 9 per cent of the vote, the party outpolled the Greens. In 2009, this
tally increased to 12 per cent, enough almost to make the Left a potential coalition partner
should the SPD ever cease pronouncing anathemas on its potential ally.
None of this would ever have happened if the Constitutional Court had ruled against
the PDS in another constitutional complaint, also related to the 5 per cent hurdle, that
followed the second united German elections in 1994. Long before the Court mandated a
merely regional application of the 5 per cent hurdle, there had been an alternative route for a
sub-5 per cent party to enter the Bundestag. From the earliest days of the Federal Republic,
the so-called Grundmandatsklausel allowed a party that won a ‘direct mandate’ in three
or more electoral districts to enter Parliament regardless of its share in the national vote.
This provision allowed members from the Centre Party to enter the Bundestag in 1953, and

45  ibid 338. The Court has recently given teeth to this dictum. In 2008, it struck down the 5 per cent hurdle for

local and regional elections in Schleswig-Holstein. 120 BVerfGE 82 (2008). In 2011, it did the same for elections
to the European Parliament. See 129 BVerfGE 300 (2011).
46  See ‘Wir brauchen Leuchttürme’ Der Spiegel (8 October 1990).
 The German Question 233

members from the nationalist German Party to do so in both 1953 and 1957. Since 1957,
however, the year of the Union’s landslide and absolute majority, the clause had lain dor-
mant. In 1994, the PDS gave it new life. Although it won only 4.4 per cent of the national vote
(a 2 per cent increase over its return four years earlier)—and although in this second uni-
fied election the 5 per cent hurdle applied nationally—the PDS still qualified to take thirty
seats in the Bundestag because it had won four electoral districts outright. Thirty seats were
plenty to allow Leftists to make mischief, and concerned citizens cried foul.
In November 1995, the Bundestag rejected a parliamentary challenge to the law, where-
upon the law’s opponents filed a constitutional complaint. The complaint invoked the prin-
ciples of electoral equality and equal opportunity for political parties—the very principles
that led the Second Senate to regionalize the 5 per cent hurdle for the 1990 election. The
complainants objected that the Grundmandatsklausel favoured some parties at the expense
of others: it included parties with concentrated support and excluded those whose support
was diffuse.
The Second Senate rejected the challenge, partly out of deference to Parliament’s power to
structure elections (a power that seemed less sacred four years earlier), but partly in recog-
nition of the legitimate legislative goal of ‘securing the character of the election as a process
of integration in the political will-formation of the people’.47 In its role as electoral regula-
tor, the legislature must ensure that elections foster the ‘integration of political forces’ and
‘strive to prevent the exclusion of significant popular concerns from the popular assem-
bly’.48 The legislature enjoyed wide discretion in forging criteria ‘that allow consideration of
the integration-strength of political parties’.49
The Senate’s emphasis on integration was telling. Societal integration, after all, was
the prominent role that Rudolf Smend and his students had ascribed to constitutional
courts since the early days of the Federal Republic. 50 By fostering integration the Court
was fulfilling one of its traditional roles. But in the context of the ongoing process of
reunification, that role assumed new meaning. Citizens of the former Eastern states
had been largely excluded from the formal process of reunification. In two major judg-
ments vindicating the PDS’s right to participate in Parliament, Karlsruhe sent a strong
signal that, so long as an Eastern party enjoyed the support of a significant number of
Eastern citizens, the Court would not brook the mechanical exclusion of that party—no
matter how unsympathetic—a share in governing the united Republic. The Court thus
helped give a voice to many whom reunification had otherwise left voiceless.

B.╇The voices of others: suffrage for non-Germans

In other respects, however, the Court’s election jurisprudence was less inclusive. In autumn
1989, when protesters in East Germany had rocked the continent with the rallying cry, ‘We
are the People!’ (Wir sind das Volk!), and later, ‘We are one People’ (Wir sind ein Volk!), the
protesters’ claim to speak for the People and as the People was, as a moral and symbolic mat-
ter, uncontestable. But as a legal and constitutional matter, the boundaries of ‘the People’
remained contested. In the very month (October 1990)  that German reunification was

47╇
95 BVerfGE 408, 418 (1997). 48╇ibid 419. 49╇ibid 422.

Smend, Verfassung und Verfassungsrecht (Duncker and Humblot 1928) 122–50; Rudolf Smend,
50╇ Rudolf

Integrationslehre in Staatsrechtliche Abhandlungen und andere Aufsӓtze, 2nd edn (Duncker and Humblot 1968)
474–81; Peter Badura, ‘Staat, Recht und Verfassung in der Integrationslehre Rudolf Smends’ (1977) 16 Der Staat
305; Wilhelm Hennis, ‘Integration durch Verfassung?’ (1999) 54 JuristenZeitung 485.
234 Karlsruhe Republic, 1990–2001

formally effected, the Constitutional Court held—anachronistically, some thought—that

the Volk from whom all authority flowed was made up only of German citizens.51
The underlying issue was whether states could allow non-citizen residents to vote in
local elections. Two states, Hamburg and Schleswig-Holstein, had passed laws saying they
could. Under these laws, foreigners resident for at least eight years could vote in municipal
council elections. Roughly 150,000 foreigners had lived in Hamburg for at least eight years,
many of whom (and many of whose parents) were born in Germany. The foreign population
of the Schleswig-Holstein district in question was considerably smaller—roughly 5,500,
most of them Danes. Schleswig-Holstein was ruled by an SPD government; Hamburg by
a Social–Liberal coalition. Pundits expected foreign residents largely to vote SPD. So did
the federal government, some of whose ministers were highly agitated by the new laws.
Friedrich Zimmermann, the interior minister and villain of the earlier census saga, bel-
lowed that the states in question were ‘selling out German interests’.52 Kohl’s government
did not challenge the measures itself, however, in part because it wished to spare the feelings
of the Union’s coalition partner. Ingo von Münch, a prominent public lawyer and Hamburg’s
FDP boss, was the driving force behind the Hamburg law. The constitutional complaint
was filed instead by the CDU/CSU Bundestag faction, in tandem with the Bavarian state
government.
In companion judgments dated 31 October 1990, the Second Senate granted the com-
plaints against both laws. Article 28(1) GG, the Senate noted, demanded representation for
‘das Volk’ at the municipal, district, and state level. And das Volk consisted—exclusively—of
German citizens.53 ‘Elections at which foreigners are also allowed to vote’, the justices wrote,
‘cannot bestow democratic legitimacy’.54 Democratic legitimacy flowed from the Volk,
and the Volk in question was German. The Senate was unimpressed by appeals to other
European nations (Ireland, Denmark, Norway, the Netherlands, Switzerland, Sweden, and
Spain) that allowed foreign residents to vote in local elections. It was moderately more sym-
pathetic to claims that European integration was modifying traditional notions of nation-
ality. The justices conceded that regulation at the European level might someday end the
exclusion of foreign residents from municipal elections. But at the county or district level,
the Court did not leave even this door open.
Critics saw in the judgment a curious resuscitation of nineteenth-century notions iden-
tifying the people with the citizenry and the nation with the state. (This was not the last
time critics would accuse the Court of embracing outdated notions of ‘State’ and ‘People’.) It
seemed strangely at odds with earlier holdings that some constitutional provisions applied,
in whole or in part, to all humans, not merely to German citizens. At the twilight of the
Bonn Republic, and on the eve of its successor, the Court seemed to suggest that the Basic
Law was the fundamental charter, not for all Germany, but for all Germans.

C.╇Past and present

Extending the Basic Law’s protections to all Germans posed problems of its own. Upon
reunification, millions of Germans were subject for the first time to a government bound by
the Basic Law. Many of the Federal Republic’s newest citizens were eager to invoke the Basic
Law’s protection. They did so, however, in conflicting ways. Some sought redress under the

51╇ 83 BVerfGE 37 (1990); 83 BVerfGE 60 (1990).

52╇ In Hans Schueler, ‘Alle Macht dem (deutschen) Volk’ Die Zeit (9 November 1990).
53╇ 83 BVerfGE 37, 53–59 (1990). 54╇ 83 BVerfGE 60, 81 (1990).
 The German Question 235

Basic Law for oppression suffered at the hands of the GDR regime or its Soviet protector.
Others, who had been employed by the fallen regime, invoked the Basic Law’s protections
of profession and property in an attempt to preserve their livelihood. The ensuing legal con-
troversies were emotionally charged. Often they pitted Eastern interests against Western.
The Constitutional Court was placed in the delicate role of arbitrating not only between
East and West, but between state and citizen, pragmatism and principle, present and past.
During its first decade, the Constitutional Court distinguished itself as the organ of
the Federal Republic most willing to confront the black legacy of Nazism. For many years
the Court’s was the clearest official voice condemning the atrocities of the Nazi era and
expressly defining the Federal Republic in opposition to its tyrant forebear.55 Its most dra-
matic decisions in this regard were those involving the Federal Republic’s responsibility for
the employment relationships of its National Socialist predecessor. As we saw in Chapter 1,
the Court convulsed the young Republic and inflamed the legal academy and ordinary
judiciary with a December 1953 judgment proclaiming that all civil servant relationships
were abolished when the Third Reich surrendered unconditionally on 8 May 1945.56 Four
decades later, one of the Court’s first major decisions addressing the constitutional com-
plexities of reunification involved the status of GDR civil servants in the expanded Federal
Republic.
How to organize the civil service in united Germany was one of many thorny questions
that arose during negotiations over the Unification Treaty. Major reorganization was inev-
itable. Proportionally, the East German civil service dwarfed that of its Western neigh-
bour: the GDR had many more bureaucrats per capita than the FRG. Absent reorganization,
there would be too many civil servants in the unified Republic.
There were structural differences between the two services as well. The traditional civil
service in the Federal Republic—with its roots in a monarchical past, its special legal
status, life tenure, and social prestige—was very different from the civil service in the
GDR, where civil servants were often appointed at the pleasure, or sacked at the whim, of
party elites. In light of these great differences, conservatives hoped simply to extend the
Western civil service structure to the Eastern states. This view fed on fears of retaining
SED cadres in Eastern state bureaucracies. One the other hand, some Eastern civil serv-
ants who maintained their posts through reunification had ties to the reform movements
that ousted the SED. Including such Easterners—with their alternative perspectives on
democracy and social questions—in the official life of the Federal Republic might increase
diversity and reassure Easterners that their concerns would not be ignored. What’s more,
the traditional civil service (Beamtentum) of the Federal Republic struck many as archaic,
inegalitarian, and undemocratic. To many critics, reunification offered a golden chance
for reform.57
It was an opportunity that those in power did not seize. The Unification Treaty pre-
served the traditional distinction between civil servants (Beamte) and other government
employees. More dramatically, the treaty allowed for the dismissal (with some compensa-
tion) of civil servants whose service the state no longer needed. It also allowed for entire
administrative units to be closed. Upon reunification, each administrative division of the
former GDR would be allocated either to the federal government or to one of the Eastern

55  See Norbert Frei, ‘Transformationsprozesse. Das Bundesverfassungsgericht als vergangenheitspolitischer

Akteur in den Anfangsjahren der Bundesrepublik’ in Michael Stolleis (ed), Herzkammern der Republik: Die
Deutschen und das Bundesverfassungsgericht (CH Beck 2011) 64.
56  See 3 BVerfGE 58 (1953).
57  For a fine summary of these issues, see Peter Quint, The Imperfect Union:  Constitutional Structures of

German Unification (Princeton University Press 1997) 166–67. This section relies on Quint’s summary.
236 Karlsruhe Republic, 1990–2001

states. The responsible governments would then have three months to decide which units
to retain and which to abolish. The treaty provided no criteria for determining where, and
upon whom, the axe would fall. Employees of dissolved divisions would receive 70 per
cent of their salary during a six-month ‘transitional’ period (for older employees, it was
nine months). After that, salary payments ended and former employees could seek only
unemployment benefits. Thousands were potentially affected; scores filed constitutional
complaints.
The complainants averred that the constitution required individualized assessments.
But under the treaty, each employee’s fate was bound to the fortune of her division. This
­v iolated their occupational freedom under Article 12 GG, their property rights under
Article 14, and the equality principle of Article 3.  In response, the federal government
argued that the GDR’s employment relationships ended on 3 October 1990, when, the GDR
ceased to exist. Any subsequent relationship was a product of the Unification Treaty and
could, by the terms of that treaty, be amended or annulled. In any case, the government
added, the Federal Republic was not the legal successor of the GDR and was not bound by
the GDR’s contractual obligations.
The government’s argument unmistakably echoed the Court’s 1953 Civil Servants judg-
ment. Insofar as the government argued that the employment obligations of an oppressive
regime terminate when the regime itself expires, the government was on solid preceden-
tial ground. But the government’s argument that the Federal Republic had not succeeded
the GDR mingled less comfortably with the Court’s prior jurisprudence—particularly
its Basic Treaty judgment of July 1973. In that decision, the Court ruled that the Federal
Republic was the legal successor to the German Reich, with the caveat that Republic and
Reich were only ‘partially identical’.58 With reunification, the Federal Republic arguably
became the Reich’s successor in a fuller sense—and the successor, too, of the Reich’s erst-
while constituent parts.
In its judgment of 24 April 1991, the First Senate made no broad statements about the fed-
eral government’s jurisprudential relationship with either the German Reich or the GDR.
But the Court did observe that by the terms of the Unification Treaty itself, the federal
and state governments of the Federal Republic assumed certain contractual obligations
of the GDR. To this extent, at least, the Federal Republic was the GDR’s legal s­ uccessor.59
For this reason, treaty provisions for dissolving administrative divisions and dismissing
individual civil servants implicated Article 12 GG (though not Article 14, which pro-
tected property already acquired, not expectations of future acquisition).60 This Article 12
restriction, however, was justified by superior interests—efficient administration, for one
thing, healthful finances for another.61 Both interests were urgent amid the administrative
and financial turmoil of reunification.
This did not mean, however, that the federal government enjoyed a carte blanche. The
Court indicated that the treaty’s provision for interim payments to dismissed employees
was not merely generous but constitutionally required.62 In this regard, the Court struck
a very different tone from that of the 1953 Civil Servants judgment, which ruled that the
compensation of Nazi-era civil servants was a matter of parliamentary largesse, not con-
stitutional mandate.63 In addition, the 1991 judgment emphasized  that the state must

58  36 BVerfGE 1, 16 (1973). 59  84 BVerfGE 133, 147 (1991). 60  ibid 147, 156.
61  ibid 148–52. The Court also held that the treaty provisions presented no equality problem because the pro-
visions reference to the ‘need’ for a given division or employee established an objective base for differentiating
among employees.
62  ibid 152–53. 63  See Chapter 1.
 The German Question 237

continue to soften the impact of reorganization. In certain particulars, the state must do
even more. Specifically, it must make special efforts to reintegrate elderly employees into
the workforce.64 It must dismiss such employees only if they have a well-founded prospect
of new employment elsewhere in the public service. Pregnant women and single mothers,
moreover, enjoyed special constitutional protection under Article 6(4) GG; they must not
be dismissed at all.65 In their failure to protect such mothers—and in this regard only—the
contested provisions were unconstitutional.
In this latter-day Civil Service judgment, the Court struck a balance between pragmatic
acceptance of political realities and sympathetic awareness of the costs those realities
imposed on individuals. The Court deferred to the hard bureaucratic demands of reunifica-
tion but made them more humane. It signalled to Germans in the Eastern states that their
interests would not be steamrolled by the Western behemoth. And it signalled to Germans
everywhere that the ‘social state principle’ embedded in the Basic Law might exert greater
force in the new Republic than it had in the old. As one commentator concluded, the Court’s
judgment ‘made the dismantling of the public service in the former GDR ‘more socially
tolerable’. It softened hardships inherent in the Unification Treaty. At the same time it made
clear that citizens of the former GDR enjoyed, in principle, the same constitutional status
as citizens of the Federal Republic—in contradiction to the federal government’s theory
that Eastern citizens were fundamental rights bearers only ‘as stipulated by the unifica-
tion treaty’.66 It was a strong statement that the Federal Republic’s newest citizens were
full-fledged citizens. Its outcome was pragmatic; its tone strongly integrationist.67

D.╇Ill-gotten lands: compensating victims of Soviet ‘land reform’

The Court adopted a similarly pragmatic, integrationist, and mediating posture in an
even more dramatic judgment issued just the day before. In a controversy of wrenching
emotional and political charge, the Court conducted a high-profile exercise in judicial
Vergangenheits bewӓltigung—a confrontation with the oppressive past, not of the Third
Reich, but of the Soviet Occupation Zone, and later the GDR. The Court’s encounter with
this history of oppression left many victims of that oppression bitterly disappointed.
Few questions surrounding German reunification were as visceral or as volatile as the
effect of reunification on property relations in the Eastern states. The core of the contro-
versy was the fate of properties expropriated by Soviet occupation forces between 1945 and
1949, and by the East German government between 1949 and 1989. At the end of the Second
World War, Eastern Germany’s Soviet occupiers launched a broad and brutal programme
of ‘land reform’—a euphemism for the wholesale confiscation of large landholdings in the
name of socialist collectivization and in ostensible punishment of putative Nazi abettors
and sympathizers. After the occupation period ended, the programme was modified and
extended through periodic takings conducted by the GDR government, including takings

64╇84 BVerfGE 133 (n 59) 154–55. 65╇ ibid 155–57.

66╇ WolfgangDӓubler, ‘Die sogennante Warteschleife auf dem verfassungsrechtlichen Prüfstand’ (1991) 45
Neue Justiz 233, 236.
67╇ The same was true of other cases in which the Court addressed the status of former East German civil serv-

ants or of persons in similar situations. In August 1995, for instance, the Court reversed a decision of the Federal
Court of Justice that had affirmed the revocation of the law licences of East German lawyers. See 93 BVerfGE
213 (1995). The Court found in the revocations a violation of the lawyers’ rights, guaranteed by Article 12(1)
GG, to occupational freedom. On the other hand, the Court ruled in July 1997 that evidence that a public school
teacher’s servile devotion over many years to the East German state, or to the SED party that ruled it, might reflect
an equivocal devotion to the principles of the Rechtsstaat and could serve as grounds for dismissal. 96 BVerfGE
152 (1997).
238 Karlsruhe Republic, 1990–2001

aimed at East German citizens who—traitorously, it was maintained—left the country to

cast their lot in the West.
Predictably, after reunification the victims of these expropriations wanted their lands
back. Their successors in interest, just as predictably, were unwilling to let the lands go.
Those negotiating the Unification Treaty for the Federal Republic believed that for the
Soviet Union, upon whose approval reunification depended, restitution of expropriated
lands was a deal-breaker. The success of reunification, it was believed, required compro-
mise. A wrenching compromise was forthcoming.
The territory in question was enormous. More than a third of the land in the new Eastern
states was affected. In the early occupation years, the Soviets expropriated all possessions
in excess of 250 acres and mercilessly hounded the erstwhile proprietors—arresting them,
imprisoning them, or committing them to labour camps. Similar expropriations continued
throughout the GDR era.68
As events sped toward reunification, victims and heirs hankered to assert their claims.
A familiar stereotype pictured a prosperous Westerner appearing at the home of a woe-
begone Easterner, presenting a batch of yellowed papers, and calling the house his own.
Full-scale restitution of expropriated properties was certain to wreak socio-economic mis-
chief. The cost in human suffering was sure to be prodigious. On the other hand, the expro-
priations themselves left a trail of suffering and a legacy of injustice. The controversy was
certain to leave its losers bitterly disappointed. It threatened to wreck the whole project of
reunification.
The negotiators of the reunification treaty ultimately worked out a deal whereby expro-
priations effected between 1945 and 1949—effected, that is, on the basis of occupation law
or authority—were declared irreversible, while properties taken after this date were to be
restored to their original owners. To shield the compromise against constitutional objec-
tion, the treaty enshrined the irreversibility of pre-1949 seizures as the new Article 143(3)
of the Basic Law.
This textual fig leaf neither comforted nor deterred the former owners. On 5 October
1990—less than forty-eight hours after the official proclamation of German unity—a band
of prior proprietors took their cause to Karlsruhe.
The constitutional controversy surrounding compensation for Soviet and GDR land
expropriations had already swept the land.69 Those asserting the constitutional right
to restitution of properties confiscated between 1945 and 1949 faced large analytical
obstacles—temporal, geographic, jurisdictional, and even textual. The Basic Law did not
enter into force until May of 1949, and arguably, therefore, did not apply to government
action taken before that date. What’s more, the Basic Law, by its own terms, applied only
within the states that ratified it and to actions of the government (the Federal Republic)
that it created.70 Finally, because the treaty’s denial of restitution for pre-1949 arrogations

68  For a concise survey of the process, see Jonathan J Doyle, ‘A Bitter Inheritance: East German Real Property

and the Supreme Constitutional Court’s “Land Reform” Decision of April 23, 1991’ (1991–92) 13 Mich. J. In’t L.
832, 834–39.
69 See Otto Kimminich, Die Eigentumsgarantie der Wiedervereinigung (Verlag Landwirtschaftliche

Rentenbank 1990); ‘Enteignungen in der DDR von Anfang nichtig’ Die Welt (20 July 1990) 10; Thomas Thierau
and Albrecth Tintelnot, ‘Unklarheiten und verwirrende Regelungen bei Rückgewӓhr enteigneten Vermӧgens’
Handelsblatt (20 August 1990); ‘Drohende Verfassungsklage’ Handelsblatt (August 29, 1990); ‘Enteignete sind
enttӓuscht’ FAZ (5 September 1990) 2; Hans Herbert von Arnim, ‘Entzug der Grundrechte aus Opportunitӓt?’
FAZ (6 September 1990) 8; Franz Michel, ‘Zur Rückabwicklung der Enteignungen’ FAZ (7 September 1990) 12;
Hans Mahrenholz, ‘So wird “dauerhafter Rechtsfrieden” nicht erreicht’ FAZ (11 September 1990) 1; Friedrich
Karl Fromme, ‘Einheit und alte Rechte’ FAZ (19 September 1990) 1.
70  See Article 23 GG.
 The German Question 239

had been secured by constitutional amendment, pre-1949 victims could prevail only if the
Court found that the new Article 143(3) GG was itself unconstitutional—that is, that the
amendment breached the ‘eternity clause’ of Article 79(3).
Against these obstacles advocates of restitution maintained that the Unification Treaty’s
partial, post-hoc ratification of pre-1949 confiscations constituted an independent,
present-day violation of Article 14’s guarantee of property rights. Moreover, by treating dif-
ferently those victimized before and after 1949, the treaty and the amendment violated the
equality principle of Article 3. Finally, champions of the pre-1949 victims held that because
Article 1(3) made the fundamental rights enumerated in Articles 2 through 19 of the Basic
Law binding on the legislature, the executive, and the judiciary, the amendment condon-
ing compromise on land expropriation—which ran afoul of Article 3 and Article 14—was
impermissible under Article 79, which secured Articles 1 and 20 against legislative amend-
ment. For good measure, victims urged that the confiscations were invalid the moment they
were undertaken—invalid under natural law, under international law, and even by virtue
of the Weimar Constitution.
For several months, scholars and citizens propounded the finer points of these argu-
ments with passionate intensity in the learned and popular press. The question was as con-
ceptually complex as it was emotionally poignant. As the debate reached its climax, all eyes
turned to Karlsruhe.
By one account, the oral argument held before the First Senate on 22 January 1991 was
one of the most dramatic the court had ever seen.71 The Court’s published opinion, by con-
trast, was anti-climactic.
The First Senate unanimously upheld the treaty provision making pre-1949 expro-
priations irreversible.72 Though the written decision was quite long, the Senate’s sub-
stantive engagement with the constitutional issues was quite terse. The Court rejected
categorically the notion that the confiscations were illegal at the time of their execu-
tion. They were authorized, the Court concluded, under Soviet law and GDR law, and
not subject to the property protections of the Basic Law, which didn’t then apply.73
Central to the Court’s analysis was the justices’ view that the expropriations were the
work ‘of another state’.74 The ‘social state’ principle might require that the Federal
Republic effect some ‘burden sharing’ (Lastenausgleich) in favour of the victims of
past injustice. But Article 79 did not require that such redistribution take the form
of direct restitution. The Court acknowledged that both the Unification Treaty and
Article 143(3) GG treated victims differently, but observed that the compromise was
essential to reunification—or at least that it was deemed essential by reunification’s
political architects. The Soviet Union had apparently conditioned its approval of
the treaty on the compromise over expropriations. This being so, the treaty’s differ-
ential treatment of victims was justified by the preamble’s command—the so-called
Wieder vereinigungsgebot—that the Federal Republic pursue reunification.75 Some
restriction of one constitutional value (equality) must be tolerated as the prerequisite
of another (reunification).
This did not mean that reunification trumped equality tout court. Article 3 required that
the legislature compensate those whose losses the treaty made permanent. But the legisla-
ture itself would determine how much compensation was feasible in light of reunification’s
other—enormous—financial demands.76

71  Doyle (n 68) 834 fn 9. 72  84 BVerfGE 90 (1991). 73  ibid 119–20. 74 ibid 124.
75 ibid 125. 76  ibid 129–31.
240 Karlsruhe Republic, 1990–2001

Responses to the judgment mingled bitter disappointment, analytical bemusement, and

pragmatic resignation. The latter sentiment probably predominated, but even those who
acknowledged that the Court was walking a political minefield were distressed by its lack
of doctrinal daring. Friedrich Karl Fromme lamented on the front page of the Frankfurter
Allgemeine that the justices had produced ‘many words but little clarity’.77 Critics grieved
that a constitutional controversy that raised bewildering conceptual questions had received
terse and perfunctory answers—or no answers at all. The outcome may have been inevita-
ble, but many hoped for a richer justification.
Many also hoped for a stronger denunciation of the underlying crimes. An American
observer wrote that ‘[p]‌erhaps the most unsettling aspect of the opinion [was] the Court’s
failure to utter a single harsh word about the severe, often deadly, persecutions to which
property owners in the East were subjected’.78 This seems unfair. The justices surely took
the iniquity of the expropriations for granted. But what puzzled and troubled many critics
was the prominent role the opinion afforded to the Soviet Union, the dwindling giant that
would, by year’s end, give up the ghost. That a major principle of German constitutional
law should be influenced by the spectre of Soviet obstruction suggested that the expiring
empire had held the Basic Law hostage. This was deeply disturbing to the decision’s many
critics.
Ironically, it also provided a ray of hope. If the factual predicate of the Court’s decision
was the Soviets’ ostensible refusal to approve the treaty absent a compromise on expropia-
tions, then the Court might reconsider its holding if the predicate proved fallacious. After
the Soviet Union fell, this seemed plausible. In August 1994, the Frankfurter Allgemeine
Zeitng reported that, in an interview with the British historian Norman Stone, the USSR’s
terminal president, Mikhail Gorbachev, firmly denied making the compromise a sine qua
non of reunification.79 Gorbachev confirmed and amplified this denial nine days later in
Der Spiegel.80 In some knowledgeable quarters, Gorbachev’s assertions were positively
affirmed; in others, they were vehemently denied.81
Controversy surrounding the Soviet stance reignited controversy surrounding the
Court’s Land Reform decision. The renewed controversy resulted in a second constitutional
complaint. The complainants asked the Court to revisit its earlier decision in light of recent
factual revelations.
The justices were disinclined. In its second Land Reform decision, dated 18 April 1996,
the First Senate rejected unanimously the renewed complaints and answered some criti-
cisms of its earlier decision.82 The Senate was not convinced that the revisionist historical
case was unanswerable.83 It was convinced that assessing the Federal Republic’s bargaining
position in the run-up to reunification was the exclusive prerogative of the federal govern-
ment.84 It was not for the justices to second-guess that assessment with the benefit of hind-
sight and by the dubious light of public interviews and political memoirs. The agents of the
Federal Republic’s foreign policy were only required to interpret affairs in a manner that
found ‘plausible support’ in the evidence then available.85 The West German architects of
reunification met this test easily.
Years passed before the victims of pre-1949 expropriations hazarded a third attempt.
This time the complainants challenged the exemption as a violation of international law—a

77  Friedrich Karl Fromme, ‘Viele Worte und wenig Klarheit’ FAZ (24 April 1991) 1.
78  Doyle (n 68) 861.
79  ‘Gorbatschow: Moskau hat die Enteignungen in der Sowjetzone nicht für unantastbar erklӓrt’ FAZ (27

August, 1994).
80  ‘Soviel Kleinkram’ Der Spiegel (5 September 1994). 81  See Quint (n 57) 139.
82  94 BVerfGE 12 (1996). 83 ibid 43–46. 84 ibid 35. 85 ibid 40.
 The German Question 241

move that had the procedural effect of shifting jurisdiction from the First Senate to the
Second. The complainants now argued that the expropriations ran afoul of public inter-
national law and that the Federal Republic, by failing to reverse the expropriations, had
violated the Basic Law’s command to uphold the integrity of international agreements. In
October 2004, by a vote of 7:1, the Second Senate rejected this complaint as well.86 The Court
construed the relevant international norms narrowly, ruling that, at the time of the Soviet
expropriations, those norms had not established universal protections for property rights.
In any case, the Federal Republic was not bound to vindicate those rights by restitution as
opposed to other forms of compensation.
Earlier, victims of the Soviet land reform had challenged those other forms of compensa-
tion on their own terms. In the aftermath of the First Senate’s much-criticized first Land
Reform judgment in 1991, the united German Parliament passed a series of statutes designed
to compensate both victims of Soviet expropriations who had been excluded from the gen-
eral policy of restitution (or those entitled to restitution but who, for technical reasons,
never received it) and victims of Nazi-era expropriations who never received compensa-
tion from the East German government. Collectively christened EALG (Entschӓdigungs-
und Ausgleichsleistungsgesetz, or Compensation and Equalization Payment Acts), the laws
established scales for determining the value of confiscated lands and rates for compensating
prior owners. These were nettlesome questions that the Court’s first Land Reform deci-
sion had left wide open. The statutory scales usually involved some reduction in the prop-
erty’s present value based on its assessed value at the time of compensation. The scales were
regressive: small property values were reduced by 30 per cent, large values by as much as 95
per cent. A host of complainants argued that the compensation they received was constitu-
tionally inadequate and, vis-à-vis other compensated groups, unequal.
On 22 November 2000, the First Senate announced another resounding defeat for the
pre-1949 victims of Soviet Land Reform.87 Once again, and for reasons similar to those
articulated in its first two Land Reform judgments, the First Senate rejected arguments
based on Article 14’s protections of property, Article 3’s guarantee of equality, and Article
20’s entrenchment of the social state and Rechtsstaat principles. Four justices objected to
the regressive scales for calculating amounts of compensation, but the tie within the Senate
ran against the complainants. Another group of expropriation victims returned from
Karlsruhe empty handed.
There was, in the Court’s four Land Reform decisions, a strong strain of pragmatism
and deference to political actors. Some even discerned echoes of American political ques-
tion doctrine.88 Others, however, have seen more at play than Realpolitik. Peter Quint, an
American expert on German constitutionalism, saw in these and other decisions a process
by which ‘the Court … appeared to place itself in the role of a mediator or compromiser
of questions that the political forces may not have adequately resolved … especially with
respect to those constitutional principles that seemed to pit east against west’.89 To fos-
ter political mediation and societal integration was, as noted earlier, the central function
ascribed to constitutional justice by the disciples of Rudolf Smend, who left such an enduring
mark on the public law scholarship of the early Federal Republic.90 But the Court’s assump-
tion of a mediating role in reunified Germany was more than a return to Smendian societal

86 
112 BVerfGE 1 (2004). Justice Gertrude Lübbe-Wolff was the lone dissenter. ibid 44–49.
87 
102 BVerfGE 254 (2000).
88  Donald P. Kommers and Russell A.  Miller, The Constitutional Jurisprudence of the Federal Republic of

Germany, 3rd edn (Duke University Press 2012) 694.

89  Quint (n 57) 138. 90  See, e.g., the sources cited earlier in n 50.
242 Karlsruhe Republic, 1990–2001

integration. It resumed, rather, the Court’s historic role of modernizing the German legal
and political landscape, and correcting the course of the German Sonderweg. The framers
of the Basic Law had looked forward to reunification and anticipated the time when ‘the
German people’—all of them—would enact a new constitution adopted in a free election.91
This did not happen in 1990, and it fell to the Constitutional Court to adapt the Basic Law to
the imperfect structures of reunification—or rather to apply the Basic Law in a fashion that
fostered the fusion of two long-disparate peoples under a united constitution. In this con-
text, correcting Germany’s special path meant accommodating the special circumstances
of reunification. In the Land Reform cases, this meant preserving a partial victory for the
peoples of the East at the expense of Westerners whose just grievances would never be fully
redressed.

E.╇Confronting the GDR past
Soviet land reform was by no means the only realm in which the Court confronted
the heritage of oppression in East Germany. As had happened during the 1950s, the
Court became after reunification a forum for Vergangenheitsbewӓltigung—or coming
to terms with the past. Reunification was universally expected to bring the blessings of
the Rechtsstaat to the former East Germany. One of the most burning jurisprudential
questions of the reunification era was how to redress injustices committed by the GDR
Un-rechtsstaat. The question was particularly fraught because the Rechtsstaat principle
itself banned retroactive punishment. Article 103(2) GG stipulated that an act could be
punished only if its criminality was clear when the crime was committed. Accordingly,
the Unification Treaty directed the courts of the Federal Republic, in their jurisdiction
over crimes committed in GDR, to apply GDR law.92 That law, however, was controlled by
an authoritarian regime that committed or condoned, instigated or overlooked many of
the crimes for which the Federal Republic’s newest citizens now sought redress. The pros-
pect that the Rechtsstaat principle would shield the agents of a notorious Un-rechtsstaat
from legal reckoning placed two fundamental principles—legal security (nulla crimen,
nulla poena sine lege) and material justice (nulla crimen sine poena)—at seemingly
insuperable odds.
The conflict was not new to German courts. For decades the criminal chamber of
the Federal Court of Justice had wrestled with this knotty conundrum in cases involv-
ing Nazi crimes. From time to time, the Court of Justice invoked the famous thesis of
Gustav Radbruch, one-time justice minister in the Weimar Republic and one of the
most influential German legal philosophers of the twentieth century.93 Radbruch was
one of the few German jurists who neither fled from the Third Reich nor made com-
promises under it. He came to enjoy enormous authority, both moral and intellectual,
thanks to his forceful thinking, personal integrity, and elegant prose. Radbruch’s col-
lected works fill twenty volumes,94 but his greatest fame came from a few sentences in
a 1946 essay published in the Süddeutsche Juristenzeitung called ‘Legal Injustice and

91╇ See Article 146 GG.

92╇ An exception was made for cases in which the FRG’s own laws levelled a milder sanction for the same crime.
93╇ On Radbruch, see Nathalie Le Bouёdec, Gustav Radbruch: juriste de gauche sous la République de Weimar

(Les Presses de l’Université Laval 2011); Irina Mohr, Gustav Radbruch als Reichsjustizminister (1921–1923)
(Friedrich-Ebert-Stiftung 2004); Arthur Kaufmann, Gustav Radbruch: Rechtsdenker, Philosoph, Sozialdemokrat
(Piper 1987).
94╇ See Gustav Radbruch, Gesamtausgabe in 20 Bӓnden, 20 vols, Arthur Kaufmann ed (CF Müller 1987–2003).
 The German Question 243

Supralegal Justice’.95 The essay’s thesis entered the legal lexicon as the ‘Radbruch
Formula’ (Radbruch’sche Formel).96
The formula posited that material justice could trump legal security (and with it
the ban on retroactive punishment) when the conflict between positive law and mate-
rial justice reached such a degree that the positive law became unrichtiges Recht—an
untranslatable phrase denoting law so unjust as to become itself unlawful.97 Under this
formula, the retroactivity ban yielded to natural law and natural justice. After reunifi-
cation, many Germans believed the formula should apply to crimes commanded by the
GDR regime and committed by its henchmen. This was especially so in one particularly
charged context—the fatal shooting at the East German border of persons escaping to
the West.
From the Wall’s construction in August 1961 until the world-historical opening of the
border in November 1989, 264 refugees were killed while attempting to cross the border.98
The most recent of these was Chris Gueffroy, a twenty-year-old student gunned down
on 6 February 1989. Stories of the border slayings were horrific and chilling. In 1972, a
twenty-nine-year-old man from East Berlin tried to swim across the Spree to Kreuzberg
but was mowed down by the machine gun fire of the GDR border patrol. A week later,
the man’s widow posted signs indicating that he was missing. Four weeks after this, police
informed the widow that her husband’s corpse had been found in the vicinity of Berlin’s
‘Museum Island’, identified by his finger prints, and already cremated. He had died by sui-
cide, the widow was told. On the very night of the man’s death, the soldiers who shot him
were relieved from their post—but also decorated and given 150 Marks.99 Rewards for sol-
diers who killed refugees at the border were not uncommon. Almost immediately after
reunification, the effort began to bring such soldiers—and the GDR operatives who incited,
and applauded them—to justice.
Justice, of course, was the crucial term. In a series of trials that one scholar numbered
among the ‘most spectacular and important in recent decades’100—probably the most
­dramatic trials in Germany since the ‘Holocaust trials’ of the 1960s—the country’s high-
est criminal courts ruled that soldiers at the border and members of the defence coun-
cil could indeed be prosecuted for crimes arguably justified by GDR law when the crimes
were committed. The Berlin Landgericht, in the case of Chris Gueffory, reached this result
by expressly invoking Radbruch.101 The criminal chamber of the Federal Court of Justice
avoided citing Radbruch directly and underscored instead the international law obligations
by which the East German government had bound itself, as well as the court’s duty to con-
strue GDR law in a manner that reinforced human rights.102 These rulings made possible

95  Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) 1 Süddeutsche
Juristenzeitung 105.
96  On the ‘Radbruch Formula’, see Volker Neumann, ‘Richtiges Recht. Radbruchs Rechtsphilosophie und der

staatsrechtliche Positivismus Heidelberger Prӓgung’ in Karin Buselmeier and others (eds), Auch eine Geschichte
der Universitӓt Heidelberg (Edition Quadrat 1985) 211; Horst Dreier, ‘Die Radbruchsche Formel—Erkenntnis
oder Bekenntnis?’ in Heinz Mayer (ed), Staatsrecht in Theorie und Praxis. Festschrift für Robert Walter (Manz’sche
Wien 1991) 117.
97  Radbruch (n 95) 107.
98  See Christian Schaefgen, ‘Zehn Jahre Aufarbeitung des Staatsunrechts in der DDR’ (2000) 54 Neue

Justiz 1, 4.
99  See 40 BGHSt 241 (1994).
100  Horst Dreier, ‘Gustav Radbruch und die Mauerschützen’ (1997) 52 JuristenZeitung 420, 420.
101  Judgment the Landesgericht Berlin, 2 Js 48/90 KLs (9/91) (20 January 1992) in (1992) 47 JuristenZeitung 691.
102  See, e.g., 39 BGHSt 1 (1993); 39 BGHSt 168 (1993); 41 BGHSt 101 (1995); for a fuller discussion, see

Gerhard Dannecker and Kristian F. Stoffers, ‘Rechtsstaatliche Grenzen für die strafrechtliche Aufarbeitung der
Todesschüsse an der innerdeutschen Grenze’ (1996) 51 JuristenZeitung 490.
244 Karlsruhe Republic, 1990–2001

a series of convictions for killings at the border. They also prompted, from those thus con-
victed, a series of petitions to the Constitutional Court.
The Court consolidated these convictions for a single ruling, which the Second Senate
announced on 24 October 1996. It was a judgment, one commentator wrote, that ‘reached
the very limits of coming to terms with the past through law [Vergangenheitsbewӓltigung
durch Recht]’.103
The Court began by stressing the limited scope of its review. The FCJ’s criminal chamber
was the final instance in matters of criminal law. The Second Senate’s review extended only
so far as judgments of the Court of Justice implicated fundamental rights.104 The complain-
ants’ convictions obviously implicated Article 103(2)’s retroactivity ban, but they did not,
the Senate concluded, violate that provision. In so ruling, the Senate stressed that the Federal
Republic had assumed the criminal jurisdiction of a state whose laws comprehended nei-
ther democracy, nor separation of powers, nor protection of fundamental rights.105 The
Senate stressed, too, that unless the courts of the Federal Republic applied GDR law by the
light of ‘human rights recognized by international law’, the Federal Republic would betray
its own premises as a Rechtsstaat.106
The situation, in the Court’s view, was ‘entirely unique’.107 This uniqueness allowed
courts to depart from the otherwise universal retroactivity ban. The GDR law that allowed
border guards to open fire on fleeing citizens placed the state’s desire for an impermeable
border over the individual’s right to life. In the Senate’s view, this distortion of values was an
‘obvious, intolerable offence against elementary commands of justice and against human
rights protected by international law’.108 The GDR’s border practices amounted to ‘extreme
state-sponsored injustice’ (extremes staatliches Unrecht). The border law was unjust and
irregular within the GDR’s own legal order109 and flagrantly offensive to the state’s obliga-
tions under international law.110 Those who crafted and enforced the law forfeited the shield
of contemporary legality.111 Their subsequent criminal convictions, then, were consistent
with Article 103(2) GG. The Court made its nod to Radburch, but the ultimate grounds for
its decision lay elsewhere. The decision was based, not on principles of natural law, but on a
narrow reading of the retroactivity ban.
In the press, the unanimous judgment was broadly praised.112 The outcome corre-
sponded with intuitive notions of justice and a natural longing for retribution. Many aca-
demic commentators, however, had reservations. Some levelled sharp criticisms. For one
thing, Radbruch had outlined his famous formula in an historical context that Radbruch
himself deemed sui generis—unprecedented and unrepeatable. The Court’s application of
the formula (or rather, its invocation of international law to reach the same result) to crimes
committed in the GDR seemed to posit a moral equivalence between the Nazi state and the
SED state that made many observers uneasy. This was especially so because, since the days
of Willy Brandt’s Ostpolitik, the Federal Republic had cozied up to the GDR regime quite
conspicuously while turning a blind eye to ongoing outrages at the inner-German border.113
To some it seemed the worst sort of victor’s justice to allow retroactive criminalization of
acts that FRG officials had long lacked the courage to denounce.
The Court’s treatment of international law was equally problematic. The Court was
rather vague about which international norms it was applying and said nothing at all about

103  Thilo Rensmann, ‘BVerfGE 95, 96—Mauerschützen’ in Jӧrg Menzel (ed), Verfassungsrechtsprechung: Hun

dert Entscheidungen des Bundesverfassungsgerichts in Retrospektive (Mohr Siebeck 2000) 605, 611.

104  95 BVerfGE 96, 128 (1996). 105 ibid 133. 106 ibid. 107 ibid. 108 ibid 135.
109 ibid 137. 110 ibid 135. 111 ibid 136.
112  See Dreier (n 100) 422; Robert Leicht, ‘Schuld und Sühne’ Die Zeit (15 November 1996).
113  See Rensmann (n 103) 609–10.
 The German Question 245

how intensely those norms must be violated to justify an exception to the retroactivity
ban.114 What’s more, whatever the international norms violated by the border shootings,
and however heinous the violation, it remained a fact that the retroactivity ban was itself
an inviolable redoubt of international human rights.115 Both the European Convention on
Human Rights and the International Covenant on Civil and Political Rights proclaimed
the ban absolute.116 But the Second Senate did not mention the retroactivity ban’s sta-
tus as an international human rights norm. Such selective citation gave one observer ‘the
impression that legal analysis was trumped by the feeling that the perpetrators must be
punished’.117
The criticisms were entirely fair, but for most citizens they missed the point. The Court
had surely strained the boundaries of judicial Vergangenheitsbewӓltigung, but it did so at
a time when many citizens thought mastering the past hadn’t gone far enough. Earlier,
Bӓrbel Bohley, a brave paladin of civil rights in the GDR and co-founder of the New
Forum movement, voiced the dismay of many East Germans reformers over inadequate
redress of official injustice. ‘We wanted justice’, Bohley said, ‘but what we got was the
Rechtsstaat’.118 In a variety of ways—particularly with its Land Reform judgemnts—the
Constitutional Court itself had contributed to such disappointment. The Court had long
been the champion and guarantor of the West German Rechtsstaat. Many saw in this the
Court’s greatest contribution. In its reunification-era jurisprudence, the Court applied
Rechtsstaat principles in its engagement with the East German past—sometimes, some
thought, to the detriment of material justice. In its Border Guards decision, the Court
tilted the balance in the other direction. It was an extraordinary judgment, by its own
terms exceptional. The Court pointedly linked the retroactivity ban to its roots in lib-
eral democratic constitutionalism—to its roots in the Rechtsstaat. The ban’s application,
the Court suggested, to the laws of an earlier Un-rechtsstaat—one that eschewed lib-
eral values, democratic process, and constitutional limits on state power—was highly
problematic.
As an historical matter, this was nonsense. The retroactivity ban emerged under monar-
chical regimes centuries before the advent of democratic constitutionalism.119 But by forg-
ing a rhetorical link between the retroactivity ban and the core structural values of the Basic
Law, the Senate signalled that its judgment was about more than confronting a history of
repression. The Court was also engaged, at least in part, in the work of re-founding. In its
first decade, the Court had used several judgments engaging with the Nazi past as a vehicle
for proclaiming the fundamental values of the West German republic in contradistinction
to the Third Reich. Now, in its fifth decade, the Court used its confrontation with the GDR
past to articulate a founding credo for the united German republic. In the 1950s, the Court
heralded West Germany’s return from its historical Sonderweg; in the 1990s, the Court
declared the Sonderweg’s definitive conclusion.120

114 ibid 609.

See Markus Krajewski, ‘Mauerschützen und Menschenrechte’ (1997) 52 JuristenZeitung 1054, 1054.

115 
116 
The GDR was a signatory to the latter agreement—a fact that underlay the Court’s finding that the border
shootings breached East Germany’s own international obligations.
117  Krajewski (n 115) 1055.
118  In Ingo von Münch, ‘Rechtsstaat versus Gerechtigkeit?’ (1994) 33 Der Staat 165, 165.
119  See Rensmann (n 103) 609.
120  For general discussions on the tension between upholding the rule of law and ‘overcoming the past’ through

law, see Hans-Jürgen Papier and Johannes Mӧller, ‘Die rechtsstaatliche Bewӓltigung von Regime-Unrecht
nach 1945 und 1989’ (1999) 52 NJW 3289; ‘Der Rechtsstaat und die Aufarbeitung der vor-rechtsstaatlichen
Vergangenheit’ (1992) 51 Verӧffentlichung der Vereinigung der Deutschen Staatsrechtslehrer 9–175.
246 Karlsruhe Republic, 1990–2001

F.╇Financial equalization among the German states

Proclaiming the end of a special path proved easier than repairing its effects. The logisti-
cal and administrative challenges of reunification were daunting. The monetary price was
enormous. One reason that victims of the Soviet land reform received only limited finan-
cial compensation was that unification was crushingly expensive. The cost of unifying the
machinery of state and of extending the Federal Republic’s social programmes to the new
Eastern states was staggering.
By comparison with their prosperous Western neighbours, the five new states were back-
ward and poor. The Basic Law imposed on the federation a duty to assist the poorer Lӓnder
financially. It did so by prescribing a dual regime of financial redistribution. Article 106 GG
provided for the ‘vertical’ distribution of tax revenue between states and federation; Article
107 for the distribution of revenue among states. Article 107(2) prescribed that ‘differences
in financial strength among the states’ be ‘reasonably equalized’. Such equalization took
various forms, including direct transfers to poorer states from their wealthier peers.
The programme of direct transfers stirred controversy from the very beginning. In the
infant days of the Federal Republic, the state of Baden-Württemberg and the city-state
of Hamburg, burly with postwar brawn, objected in a constitutional complaint that the
requirement of state-to-state transfers offended the guarantee in Article 109(1) GG that the
states would remain fiscally autonomous and financially independent. The Court rejected
the complaint, but warned that equalization measures would violate federalist principles if
they weakened contributing states or effected a ‘leveling’ among the states at large.121 On the
other hand, the Court insisted that states have duties as well as rights, including the duty,
within reasonable limits, to assist their weaker peers. In 1986, the Court nixed an equaliza-
tion statute that failed equalize enough.122 The Court admonished the Bundestag to fix the
problem before the fiscal year 1988. An acquiescent Parliament complied. At the time, no
one foresaw the dramatic events that led to reunification, nor the avulsive impact of reuni-
fication on inter-state revenue distributions.
In 1992, the Court reviewed a complaint filed jointly by Hamburg and Bremen. The
two states alleged that the outlays required of them were excessive in light of the benefit
the port cities conferred (and the costs they incurred) by maintaining and repairing their
important harbours. The Court disagreed, but did rule that Bremen—which in some years
received no tax subsidies and had always received less than the Saarland, whose debts were
smaller—had been discriminated against unlawfully.123 Federal subsidies to both Bremen
and the Saarland, moreover, had been too small—a state of affairs the federation and the
other states must help repair. Parliament duly produced a reform statute the following year.
Enacted against the backdrop of German unification and the fiscal trauma of the Eastern
states, the new law would, beginning in 1996, incorporate the new states in the financial
equalization scheme.
Because the law was passed by a Parliament governed by a Union–FDP majority, wealthy
conservative states initially bit their tongues. That changed in 1998, when a coalition led
by the SPD, with the mercurial Greens as junior partner, swept into power in the third
united German election. It was galling enough for conservative governments with plentiful
coffers to make large annual transfers to weaker siblings. But to have the process directed
by Greens and Social Democrats was too much.124 Three conservative titans—Bavaria,

121╇
1 BVerfGE 117, 131 (1952). 122╇ 72 BVerfGE 330 (1986). 123╇ 86 BVerfGE 148 (1992).
124╇
Under the 1998 regime, the top five tax-gathering states (Hesse, Baden-Württemberg, Hamburg, Bavaria,
and North-Rhine Westphalia) dropped to the bottom of the rankings of total tax revenues. Bremen, whose
 The German Question 247

Baden-Württemberg, and Hesse—challenged the reformed equalization scheme before the

Constitutional Court.
They won an important, but partial, victory. In a judgment dated 11 November 1999, the
Second Senate ruled that parts of the equalization regime were incompatible with Articles
106 and 107 GG.125 The Senate’s assessment had two central prongs. First, the regime lacked
concrete standards governing its long-term administration. Second, in its provision for
state-to-state transfers, the equalization law equalized too much.
In the first case, the Court held that the Rechtsstaat principle required Parliament to
design standards governing equalization payments without regard to a specific political
context or a given fiscal application. Though a Rawlsian ‘veil of ignorance’ could not be
drawn over Parliament’s deliberations, the constitution mandated that the legislature
must articulate principles against which the public could hold Parliament—and parlia-
mentarians each other—accountable.126 The 1993 regime, by contrast, had been shaped
unduly by the politics of the present hour. That regime required revision. In revising it,
Parliament must take a longer view.
The revised law must also effect less dramatic changes in the relative financial strength of
the several states. The 1993 regime wrought an entire overhaul, rocketing some states from
near the bottom of the rankings almost to the top—and others from top to bottom. But
Article 107(2) GG did not require actual equality among the states, and Article 109 forbade
it.127 The constitution required Parliament to balance the autonomy, independence, and
individuality of the states against the states’ duty of mutual support. It was, as so often, a
matter of proportion. The law must strengthen weak states, but not weaken strong ones—at
least not too much. It must reduce differences among the states, but not abolish them. The
constitution commanded solidarity but proscribed levelling.128 In all of these respects, the
1993 law had gone too far.
The Second Senate did not, however, proclaim the law immediately null and void. As it
had often done before, the Court granted a stay of execution. Parliament had until the end
of 2004—a period of a little more than five years, or a full legislative term—to revise the law.
This meant that the newer states—each of which had benefited hugely from equalization
payments since 1996—would continue to enjoy the begrudging charity of their siblings for
several years more. Many hoped (in vain, as it happened) that by then the Eastern states’
need for assistance would have diminished considerably. On the other hand, the Western
states that brought the complaint were gratified that enormous, compulsory state-to-state
transfers would not persist indefinitely. And parliamentarians rejoiced that they wouldn’t
need to address this thorny issue again overnight.
It was, in short, one of those rare decisions that genuinely pleased everybody. Newspaper
commentary described an atmosphere of rarefied harmony.129 All sides of the controversy
declared themselves content; all proclaimed victory.130 As a mediator of the tensions of
reunification, the Court had surpassed itself. It was the final, masterful performance of
the case’s rapporteur, Justice Paul Kirchhof, who would finish his term in the Court—as
would Justice Dieter Grimm, the intellectual giant of the First Senate—at the end of 1999.

pre-equalization financial capacity placed it fifteenth among the sixteenth states, was launched into first place by
the equalization regime. See Kommers and Miller (n 88) 98–99.
125  101 BVerfGE 158 (1999). 126 ibid 218. 127  ibid 219–22. 128  ibid 222, 224.
129 See, e.g., ‘Machtwort zum Schluss’ FAZ (12 November 1999)1; ‘Positive Reaktionen bei Geber- und

Nehmer-Lӓnder’ Handelsblatt (12 November 1999); ‘Bundeslӓnder sind froh über das “weise” Urteil’ Frankfurter
Rundschau (12 November 1999).
130  ‘Mit der Entscheidung sind alle zufrieden’ FAZ (12 November 1999) 2.
248 Karlsruhe Republic, 1990–2001

Despite occasional scholarly criticism,131 the Equalization judgment marked a hopeful

moment for Court and country. The Federal Republic had celebrated its fiftieth anniver-
sary, the fall of the Berlin Wall its tenth. The agonizing first decade of reunification was
drawing to a peaceful close. The Court had played an important integrative role during
that decade, and had won plaudits, not for this alone, but for its broader contributions to
the ‘success story’ of the Federal Republic itself.132 At century’s end, it was hard to believe
that only four years earlier the Court had been embroiled in a controversy unlike any it
had faced before.

II.  Bio-Politics and Social Policy

Before the crisis of the mid-1990s, however, the Court wrestled with other thorny
reunification questions. The union of Germany’s two halves merged two profoundly
different s­ocieties as well as two markedly disparate economies. How to fuse these
­societies—and how to fashion a legal regime that sensibly accommodated both—was no
simple matter.133 Reunification raised a Social Question as well as recasting a German
one. Various aspects of GDR social policy—particularly with regard to gender
equality—struck some Western observers as more progressive than analogous policies
in the Federal Republic. Still others felt that, whatever their comparative merits, many
facets of the Federal Republic’s social policy needed updating. For many liberals and
progressives, reunification offered the chance for social reform—just as it provided an
opportunity to revamp the civil service.
As with the civil service, the legislative response to the possibility of reshaping social
policy was, for most progressives, uninspiring. And as had happened so often in the past,
parties and movements disappointed by their legislators in Bonn tried their luck with the
judges in Karlsruhe. Hope sprang eternal that lawmakers in red robes would prove more
congenial than lawmakers in dark suits. As a result, in the realm of social policy, as with so
many other aspects of reunification, the Court would play a frequently mediating, some-
times modernizing, always controversial role.

A. Abortion—und kein Ende!
There was one bristly area—the bristliest of all—in which legislative intervention was
unavoidable. The laws governing abortion in the ‘old’ Federal Republic and in the former
East Germany were irreconcilable. The GDR had long since adopted the ‘period solution’
(Fristenlӧsung) that had been embraced in Bonn after the fiery debates of the early 1970s,
but rejected by the Constitutional Court in 1975.134 In East Germany, abortions were avail-
able on demand during the first twelve weeks of pregnancy. East German abortion law
expressly framed a woman’s right to choose an abortion as a principle of equal protection.
West German law, by contrast, remained bound by the Court’s 1975 judgment, in response
to which the Bundestag had passed a law pronouncing (in principle) that abortion was

131  See Hans Peter Bull, ‘Finanzausgleich im “Wettbewerbsstaat”—Bemerkungen zur neuen

Fӧderalismustheorie und zu ihrer Bedeutung für den Lӓnderfinanzausgleich’ (1999) 52 Die Öffentliche
Verwaltung 269, 273; Jens-Peter Schneider, ‘Bundesstaatliche Finanzbeziehungen im Wandel’ (2001) 40 Der
Staat 272.
132  See Rolf Lamprecht, ‘Das Über-Ich der Nation’ Der Spiegel (1 September 1998).
133  See, e.g., Ingo Fritsche, ‘Aspekte deutsch-deutscher Rechtsangleichung auf dem Gebiet des Zivilrechts’

(1990) 23 Kritische Justiz 162.

134  See 39 BVerfGE 1 (1975).
 Bio-Politics and Social Policy 249

criminal throughout pregnancy, but making exceptions (in practice) for pregnant women
who could show that one of several ‘indications’ justified an abortion. The exceptions covered
cases in which carrying the pregnancy to term endangered the life, or seriously threatened
the health, of the expectant mother (‘medical indication’); competent medical authority pre-
dicted that the child would be born with severe and irremediable defects (‘embryological indi-
cation’); the pregnancy resulted from rape or sexual assault (‘criminological indication’); and,
most controversially, carrying the pregnancy to term would impose an intolerable burden on
the pregnant woman (‘social indication’).
The regime pleased no one. Abortion opponents complained that the exceptions devoured
the rule. In nearly all cases, a West German woman who wanted an abortion—and who had
time to travel and money to pay—could get one.135 Particularly galling to defenders of unborn
life was the unfettered expansion of the ‘social indication’, which accounted for more than
80 per cent of all ‘indicated’ abortions.136 On the other hand, to champions of abortion rights
the law’s lax enforcement did not erase the indignity of its regressive letter. What the law
­characterized as a criminal act justified by an enumerated exception, abortion rights activists
viewed as a ­fundamental right. Many women chafed at burdensome bureaucratic ­requirements
that required them to consult three separate authorities: the counselling centre, the physician
who assessed the asserted indication, and the physician who performed the abortion (who also
must confirm the indication). Both camps objected that the availability and quality of abortion
services varied hugely from region to region and state to state. Many West Germans found the
existing law increasingly offensive; to most Easterners, it was ­unacceptable. In any case, one
or the other side of unified Germany—perhaps both sides—would have to amend its abortion
laws. In the face of implacable conflict, something had to give.
Deciding what had to give was a riskier business than those who negotiated the reuni-
fication treaty had dared to undertake. East German representatives were passionately
committed to their country’s liberal abortion law. West German leaders, many of them
influenced by the Catholic/Christian orientation of the governing Union parties, were
unwilling to abandon their country’s grounding position that abortion was unlawful
and immoral. The impasse was so stark, and the question so explosive, that it threatened
to wreck or delay the entire project of reunification.137 In the face of potential gridlock,
the negotiators of reunification took a cue from the sages of the 1948/49 Parliamentary
Council, who in their day adroitly dodged thorny issues by deferring some controversies
for later parliamentary resolution.138 In the Unification Treaty, it was agreed that until
January 1993 the united German Republic would have a bifurcated abortion law—the law
of the former GDR would apply in the Eastern states, the law of the old Federal Republic
in the West. Abortion would be lawful or criminal depending on geography. The united
German Parliament must mend the discrepancy by New Year’s Eve, 1992.
Meanwhile debate raged. Few topics so dominated opinion columns as did abortion
reform.139 The same was true in Parliament. During the early months of 1992, the Bundestag

135  See Albin Eser, ‘Reform of German Abortion Law: First Experiences’ (1986) 34 Am J Comp L 369, 381

(‘[U]‌nder [the] indication regime almost every pregnant woman could obtain an indication if she did so with
determination’.).
136 See Rolf Stürner, ‘Die Unverfügbarkeit ungeborenen menschlichen Lebens und die menschliche

Selbstbestimmung’ (1993) 45 JuristenZeitung 709, 711.

137  For a contemporary discussion of the abortion debate in the context of reunification, see Peter H. Merkl,

German Unification in the European Context (Pennsylvania State University Press 1993) 176–81.
138  This was the case, for instance, with Article 131 GG, which directed Parliament to regulate the compensa-

tion and reinstatement vel non of Nazi-era civil servants. See the discussion in Chapter 1.
139  For a sampling only of Germany’s two leading weeklies, see ‘Verschӓrfen oder streichen?’ Die Zeit (16

February 1990); ‘Vage Hoffnungen’ Der Spiegel (9 April 1990); Monika Maron, ‘Letzter Zugriff auf die Frau’
250 Karlsruhe Republic, 1990–2001

faced no fewer than seven separate reform proposals, ranging from calls (on the Left) for
outright repeal of section 218 of the criminal code to appeals (on the Right) to refine and
restrict the permissible ‘indications’.140 The parliamentary cacophony was compounded by
the decision to release individual members from the traditional demands of party disci-
pline. Abortion was an issue that sliced across party lines and divided the governing coali-
tion. In the parliamentary battle over abortion reform, every member stood alone with
his or her conscience. Remarkably, the Bundestag forged a compromise—brought forth
by a multi-partisan group of SPD, FDP, CDU, and Bündnis 90 members—that garnered
a broad majority. In late June 1992, by a vote of 357 to 283, the Bundestag promulgated
a new Pregnancy and Family Assistance Act.141 The Bundesrat endorsed the law shortly
thereafter.142
The reform law adopted as its mantra ‘aid rather than punishment’ (Hilfe statt Strafe). Its
philosophy was that unborn life was protected best, and women empowered most fully, by a
comprehensive programme of information and counselling, as well as a general atmosphere
in which women’s professional and educational opportunities and rights were bolstered
by state financial assistance and publicly funded childcare for all children age three and
older.143 In its most dramatic provision, the law decriminalized abortion during the first
twelve weeks of pregnancy—and thus departed from the Court’s 1975 judgment—but cou-
pled decriminalization with a counselling requirement. Under the reform law, a woman less
than twelve weeks’ pregnant could secure an abortion that was ‘counseled’ but not ‘indi-
cated’. Such abortions would be ‘not unlawful’ (nicht rechtswidrig)—a fateful designation.
Immediately, the new law was challenged in a constitutional complaint raised by 249
Christian Democrat parliamentarians (all from the former West Germany) and supported
by the federal chancellor, Helmut Kohl. In addition to asking the Court to quash the reform
law outright, the complaint asked the Court to enjoin its operation pending the Second
Senate’s decision on the merits. The Court granted the injunction after a day-long prelimi-
nary hearing held 4 August 1992—one day before the law was to enter into force.144 The

Der Spiegel (14 May 1990); ‘Ich setze auf die Frauen’ Der Spiegel (14 May 1990); ‘Die sind tierisch hinterm Mond’
Der Spiegel (14 May 1990); ‘Wie Pusteblumen’ Der Spiegel (2 July 1990); ‘Der 218 muβ weg!’ Der Spiegel (30 July
1990); ‘Dritter Weg’ Der Spiegel (30 July 1990); Hans Schueler, ‘Einig im Unsinn?’ Die Zeit (3 August 1990);
Frauen in Bedrӓngnis Die Zeit (17 August 1990); ‘Zug gegen die Wand’ Der Spiegel (27 August 1990); ‘Wirklicher
Durchbruch’ Der Spiegel (3 September 1990); ‘Fataler Eindruck’ Der Spiegel (29 October 1990); ‘Sachverstand
geborgt’ Der Spiegel (14 January 1991); ‘Vernünftige Lӧsung’ Der Spiegel (11 March 1991); ‘Beraten—aber wie?’
Die Zeit (10 May 1991); ‘So teuer wie die Einhiet’ Der Spiegel (13 May 1991); ‘Kulturkampf, anders’ Der Spiegel
(13 May 1991); ‘Das zerreiβt die Partei’ Der Spiegel (13 May 1991); ‘Gottes Gebot?’ Die Zeit (14 June 1991); ‘Wann
Leben beginnt’ Der Spiegel (22 July 1991); ‘Alle beteuern: Hilfe statt Strafe’ Die Zeit (9 August 1991); ‘Frauen
müssen nicht gebӓren’ Die Zeit (9 August 1991); ‘Eine Zelle ist noch kein Mensch’ Die Zeit (23 August 1991);
‘Viele Konflikte sind unlӧsbar’ Die Zeit (30 August 1991); ‘Frauen entscheiden—wer denn sonst?’ Die Zeit,
(13 September 1991); ‘Wie ein Gong’ Der Spiegel (16 September 1991); ‘Ein Gesetz für die mündige Bürgerin’ Die
Zeit (27 September 1991); ‘Wille zum Absprung’ Der Spiegel (11 November 1991); ‘Gegen die Wand’ Der Spiegel
(30 March 1992); ‘Hoffen auf die Roten Roben’ Der Spiegel (18 May 1992); ‘Strafrecht wird zum Selbstzweck’
Der Spiegel (25 May 1992); Rudolf von Augstein, ‘Widerstand ist Pflicht’ Der Spiegel (25 May 1992); ‘Partei
ergreifen gegen das Gewissen’ Die Zeit (29 May 1992); ‘Das werdende Leben geht vor’ Der Spiegel (29 June
1992); ‘Das ist noch nicht zu Ende’ Der Spiegel (29 June 1992); ‘Der Riβ geht durch die Union’ Die Zeit (3 July
1992); ‘Kippt Karlsruhe den Kompromiβ?’ Die Zeit (3 July 1992); ‘Mit dem Tunnelblick’ Der Spiegel (3 August
1992); ‘Einstweilen nicht’ Die Zeit (7 August 1992); ‘Gefӓhrliche Lücken’ Der Spiegel (10 August 1992); ‘Letzte
Worte’ Der Spiegel (9 November 1992); ‘Wenig Hoffnung auf Karlsruhe’ Die Zeit (4 December 1992); Rudolf von
Augstein, ‘§ 218, zum zweiten’ Der Spiegel (7 December 1992); ‘Die Konterkapitӓne von Karlsruhe’ Der Spiegel
(7 December 1992).
140  For a helpful summary of the proposals, see Albin Eser, ‘Das neue Schwangerschaftsabbruchsstrafrecht auf

dem Prüfstand’ (1992) 46 NJW 2913.

141  Schwangeren- und Familienhilfegesetz.
142  For a thorough contemporary analysis of the law see Eser (n 140).
143  The childcare provisions were to enter force in 1996; the crushing costs of reunification dashed the plan.
144  86 BVerfGE 390 (1992). The injunction was to last six months, toward the end of which period the Court

renewed it for six months more. 88 BVerfGE 83 (1993).

 Bio-Politics and Social Policy 251

injunction outraged liberal activists and surprised constitutional scholars.145 The Court, as
everyone knew, had never enjoined a law and later left it wholly intact. Many feared for the
life of the hard-won compromise.
The Second Senate delivered its much-anticipated merits decision on 28 May 1993.146 It
was an epic opinion—at least in its proportions. The majority judgment and two dissenting
opinions fill 163 pages of the Court’s official reports. The Senate reaffirmed the core princi-
ples of the 1975 Abortion judgment—now to be known as Abortion I—but at the same time
made concessions to the perceived needs of a united Germany. For many critics, the conces-
sions were cold comfort; for others, they had the feel of a clumsy compromise dictated by
unprincipled pragmatism.147
The Senate majority began by reiterating what the First Senate had ruled eighteen years
earlier: that the Basic Law obliged the state to protect human life—even unborn life, and
even against expectant mothers.148 On the other hand, abortion restrictions implicated fun-
damental rights of pregnant women, including human dignity, the right to life and bodily
integrity, and free personal development.149 But balancing these rights against a foetus’s
right to life—which abortion totally negated—yielded a clear outcome. The state remained
constitutionally bound affirmatively to protect unborn life. The state could fulfil this duty
only if the legislature banned abortions generally and imposed a general duty on pregnant
women to carry their pregnancies to term.150 This was true, the Senate stressed, for the full
duration of the pregnancy. Human life began at least by the moment of implantation,151
and the right to life did not vary in strength with the passage of time.152 As a matter of con-
stitutional principle, abortion must be outlawed at all stages of foetal development. There
were exceptions, of course, to be defined, in principle, by the legislature. But in this case the
Senate defined them itself.
At the heart of its holding the majority ruled that abortions ‘counseled but not indicated’
could be decriminalized but not fully legalized. The legislature might shield early-term,
non-indicated abortions from criminal punishment, but such abortions must remain
unlawful (Rechtswidrig).153 By proclaiming otherwise the reform law offended the right to
life. A ‘merely counseled’ abortion was a wrong, and though the state might choose not to
prosecute this wrong, it must nonetheless denounce it.
So far the Senate’s holding might seem merely semantic or symbolic. But the Court
drew fateful consequences from its finding that the state must affirm the wrongfulness of
non-indicated abortions. The most dramatic and controversial of these dealt with funding.
Five justices agreed that, unless a pregnant woman had insufficient means to pay for an
abortion, the cost of a non-indicated abortion must not be covered by public insurance.154
Justice Ernst-Wolfgang Bӧckenfӧrde, who otherwise joined the majority opinion, dissented
on this point.155 In Bӧckenfӧrde’s view, it was for the legislature, not the Court, to determine
whether all non-indicated abortions were wrongful and therefore undeserving of public
funds. The majority’s stance was ‘not only incoherent’, Bӧckenfӧrde wrote, it insulted ‘women
as persons, in their honour and righteousness’.156 Public consciousness of the wrongfulness
of abortion was little helped if the legal order exalted the distinction between right and
wrong rhetorically but then ignored that distinction in practice by excluding health cover-
age across the board. Treating some abortions as normatively justified but legally wrongful

145 See Kommers and Miller (n 88) 387. 146  88 BVerfGE 203 (1993).

147 See, e.g., Susanne Walther, ‘Thou shalt not (but thou mayest): Abortion after the German Constitutional
Court’s 1993 Landmark Decision’ (1993) 36 German Yearbook of Int’l L. 385, 402 (‘It looks like the [Court] sought
to appease a wide spectrum of political positions … ’).
148  88 BVerfGE 203 (n 146) 251–63. 149 ibid 254. 150  ibid 252–53. 151 ibid 251.
152 ibid 254. 153 ibid 299. 154  ibid 315–20. 155 ibid 359. 156 ibid 362.
252 Karlsruhe Republic, 1990–2001

would, Bӧckenfӧrde predicted, generate moral schizophrenia.157 This strong language

earned loud applause from appreciative progressives. But the majority ruling—that merely
counselled abortions were neither lawful nor fundable—carried the day.
The Senate majority also had many controversial things to say about counselling.
Counsellors must be licenced by the state, the majority held, but they must not remain
neutral. The counsel they gave must be resolutely pro-life. In this respect, the reform law’s
counselling provisions—which suggested that the aim of counselling was to help pregnant
women make the choice best suited to their circumstances—were unconstitutional. The
Court acknowledged that counselling would be most successful—that is, most likely to
prevent an abortion—if it enjoyed the trust and cooperation of the woman being coun-
selled. For this reason, counselling must be ‘results open’ (ergebnisoffen), leaving the last
word to the woman herself.158 But the counselling must also be ‘goal-oriented’ (zielorien-
tiert)—and the goal was to persuade women not to abort.159 One critic skewered this pas-
sage for mingling analytical confusion with ‘frightful German’.160 But the upshot was quite
clear: licenced counsellors must urge pregnant women to continue their pregnancies. In
doing so, the Senate added, counsellors must highlight the resources available to ease a
pregnant woman’s way forward.
For there must be such resources.161 The state must take positive measures to foster a
‘children friendly’ society.162 This included making life easier for mothers. The state must do
more to shield women from educational and occupational disadvantages associated with
pregnancy and child rearing.163 In this regard, the Court applauded the law’s social welfare
provisions and prodded Parliament to extend them.
In sum, then, the state must proclaim the wrongfulness of non-indicated abortions,
encourage women to forego them, and provide resources to help along the way.
But this wasn’t all. In certain instances the state must retain the threat of criminal
punishment—directed not at pregnant women, but at their treating physicians. Doctors
must, on pain of criminal sanction, inform the patient that abortion destroys human life;
ascertain her reasons for aborting; ensure that she has complied with counselling and wait-
ing requirements; and conceal the unborn child’s gender during the first trimester.164
It was a long, laborious, detailed decision. It read, at times, like a regulatory fiat. The opin-
ion clearly required parliamentary revision and provided interim rules that would govern
the law of abortion until that revision took place. Critics compared these provisional regu-
lations to the ‘emergency decrees’ by which the federal president ruled a fractious country
in the waning days of the Weimar Republic.165
In the eyes of the Senate’s three dissenters, the majority had gone much too far.
Justice Bӧckenfӧrde, as we have seen, objected to the majority’s universal designation of
non-indicated abortions as unlawful and to its uniform denial to such abortions of pub-
licly funded insurance. Ernst Gottfried Mahrenholz, the Court’s vice president, and Justice
Bertold Sommer dissented more categorically.166 In their view, mother and child were not
unambiguously discrete at all stages of pregnancy. A pregnancy, rather, was an evolving
process of ‘duality in unity’ (Zweiheit in der Einheit), in which unity prevailed in the earliest

157  ibid 363–64. 158 ibid 282. 159 ibid.

160  Margrit Gerste, ‘Ein Schritt vor, zwei zurück’ Die Zeit (4 June 1993).
161  88 BVerfGE 203 (n 146) 259–61. 162 ibid 260. 163  ibid 259–60. 164  ibid 289–92.
165  See Hans-Peter Schneider, ‘Die Vollstreckungskompetenz nach § 35 BVerfGG—ein Notverordnungsrecht

des BVerfG’ (1994) 40 NJW 2590.

166  88 BVerfGE 203 (n 146) 338–58. Notably, the Senate’s only woman, Justice Karin Graβhof, joined the

majority opinion in full. As we saw in Chapter 3, the lone woman on the First Senate in 1975 dissented vigorously
from the Court’s judgment in Abortion I.
 Bio-Politics and Social Policy 253

stages and duality later on. The unity of a pregnant woman and her foetus during the early
weeks of pregnancy made it impossible, in a legal sense, for the woman to wrong the unborn
child.167 Under this view, a woman had a fundamental right, after counselling, to abort
a pregnancy during the first twelve weeks. For Mahrenholz and Sommer, the majority’s
holding that merely counselled abortions were neither criminal nor yet lawful was not only
conceptually confused but would numb society’s moral sense and hinder its effort to protect
the unborn.168 In any case, the state’s constitutional duty to protect the unborn did not and
must not include a duty to shape the public’s sense of right and wrong.169 In holding other-
wise, the majority had not merely assumed a prerogative that did not belong to the Court; it
had invented an obligation that did not belong even to the legislature.
Negative reactions were swift and shrill. Christel Hanewinckel, a Social Democrat par-
liamentarian, fired off a philippic in Die Zeit that began, ‘We, the parliamentarians in the
Bundestag …’. Hanewinckel proudly praised the Bundestag’s achievement in passing the
reform measure and described the Court’s decision as a ‘slap in the face’ to Parliament and
an affront to women everywhere. ‘Women in the new [Eastern] states’, Hanewinckel wrote,
‘simply cannot accept this decision’.170 Critics shouted that the judgment was ‘outrageous’—
‘a relapse into the Middle Ages’.171 Others reviled the judgment in terms of class conflict.
The Court had created ‘two classes of women’, said Gisela Bӧhrk (SPD), the women’s minis-
ter in Schleswig-Holstein: those who could afford abortions and those who could not.172 The
country’s poorest women would bear the brunt of the Court’s ruling—and the vast majority
of such women lived in the East. Angela Merkel, the federal family minister and a CDU ris-
ing star from the former East Germany, worried that women now faced ‘a decidedly more
difficult, if not impossible situation’.173 It was an irony not lost on advocates of abortion
rights that the judgment which ‘finally’ acknowledged a woman’s ultimate, first-trimester
right to abort was celebrated by conservatives and pro-life activists, by Catholic bishops
and Bavarian traditionalists. Some characterized the judgment as ‘one step forward, two
steps back’.174
Liberal legal academics were disappointed as well. One wrote that the decision was ‘a
practical victory for women faced with unwanted pregnancy, but not a victory for women’s
rights’.175 Others thought the Court’s reasoning was flawed, not to say paradoxical or even
oxymoronic. How could non-indicated abortions be both ‘non-criminal’ and ‘unlawful’?
How could counselling be both ‘goal-oriented’ and ‘results-open’?176 Analytically, it was not
the Second Senate’s finest hour.
The passage of time brought quieter responses. In an area as volatile as this, a compro-
mise that gave to one side a de facto right to first trimester abortions and to the other a strong
official statement that abortion is wrong—and averted the discomfort of overruling prior
precedent—struck some as a pragmatic necessity and others as the best that could be done
under the circumstances. The judgment even won a few moderate admirers. Reviewing
the decision in the JuristenZeitung, Christian Starck, a public law professor in Gӧttingen,
wrote that ‘whoever reads the judgment in tranquility and takes the effort to follow the
arguments, will be forced to acknowledge with respect the achievements of the Federal

167 
ibid 343–44. 168  ibid 348–49. 169  ibid 354–55.
170 ChristelHanewinckel, ‘Ausgegrenzt’ Die Zeit (4 June 1993). Hanewinckel’s title suggested that
women—especially Eastern women—had been ‘excluded’ or ‘segregated’ by the Court’s ruling.
171  Noted in Ulrich Greiner, ‘Die Welt von Fall zu Fall’ Die Zeit (4 June 1993).
172  In ‘Abbruch auf Kredit?’ Der Spiegel (31 May 1993). 173 ibid.
174  Margrit Gerste, ‘Ein Schritt vor, zwei zurück’ Die Zeit (4 June 1993). 175  Walther (n 147) 399.
176  See Monika Frommel, ‘§ 218: Straflos, aber rechtswidrig; zielorientiert, aber ergebnisoffen—Paradoxien

der Übergangsregelungen des Bundesverfassungsgerichts’ (1993) 26 Kritische Justiz 324.

254 Karlsruhe Republic, 1990–2001

Constitutional Court’.177 Perhaps, Starck added, ‘some shrill criticism in the immediate
aftermath of the declaration of judgment would have been foregone had the judgment been
thoroughly read beforehand’.178
All sides ultimately learned to live with the judgment. The immediate clamour was
gradually replaced by low, lingering grumbles. It helped that the statute Parliament passed
in response to the Court’s decision softened some of the decision’s sting. The compulsory
counselling prescribed by statute struck some observers as less forcefully pro-life than the
Court’s judgment seemed to require. The statute also made it easier for pregnant women
to fund abortions through public insurance, and limited sanctions on those who pressure
women into obtaining abortions.179 The Court had quashed one parliamentary compro-
mise, and Parliament answered with another. Some Christian Democrat members mur-
mured that the new statute fell short of the Court’s commands, but they were in no mood to
stir the ashes of a cooling controversy with another appeal to Karlsruhe.180 To a remarkable
degree, Germany’s abortion controversy was over. For better or for worse, another deep
and divisive reunification dispute bore the mediating mark of the Constitutional Court.181

B.╇Gender equality
Some of those most angered by the Abortion II judgment were willing to forgive the Court
for the sake of its historical pattern of advancing gender equality in the Federal Republic.
The Court resumed that role after reunification.
In a March 1991 judgment, for instance, the Court abolished one of the final vestiges of
the Civil Code’s patriarchy.182 The controversy dealt with names. In 1957, Parliament passed
a law—encountered already in Chapter 1—that sought to harmonize the civil code with
the Basic Law’s guarantee of legal equality for women and men. Among other things, the
law granted married women the right to retain their maiden names as part of a hyphenated
‘double name’. A generation later, in 1978, the Constitutional Court ruled that Article 3(2)
GG required more. A woman must be able to keep her maiden name as her married name.183
Already in 1976, Parliament had created this possibility, providing that engaged couples
could decide, before their wedding, which surname—the husband’s or the wife’s—to bear
as the common ‘family name’. The law further directed that, in cases of conflict, the hus-
band’s surname would serve as the family name. In all cases, a man retained the right to
append his given surname to his family name. More than a decade after the law was passed,
a young couple took umbrage with this clear gender discrimination, and over several years
battled their way to the Constitutional Court.
‘For the sole reason that I am a woman’, began the bride’s complaint, ‘I have now lost
my name’.184 This, she contended, was a frank affront to Article 3 GG. By a vote of 6:2, the
First Senate agreed. The state might have good, constitutionally unobjectionable reasons
for requiring a family to carry a common name.185 But that couldn’t justify a clear discrep-
ancy in the treatment of men and women.186 The law must be revisited. In the meantime,
if a couple could not agree on a common name, each partner to the marriage would keep

177╇ Christian Starck, ‘Der verfassungsrechtliche Schutz des ungeborenen menschlichen Lebens’ (1993) 48

Juristenzeitung 816, 822.
178╇ibid.
179╇ The new law became the latest incarnation of section 218 of the criminal code (Strafgesetzbuch).
180╇ See Kommers and Miller (n 88) 393–94. 181╇ See Quint (n 57) 163–65.
182╇ 84 BVerfGE 9 (1991). 183╇ 48 BVerfGE 27 (1978).
184╇ In ‘Im Zweifel durchs Los’ Der Spiegel (18 March 1991). 185╇ 84 BVerfGE 9 (n 59) 19.
186╇ibid 19–20.
 Bio-Politics and Social Policy 255

his or her pre-marital surname. Children born to such a marriage would bear both their
parents’ surnames, separated by a hyphen, the order determined by lot.187 This was techni-
cally a provisional regulation. But it was hard to see, after the Court’s decision, what other
options remained open. It was an ‘epochal judgment’,188 the newspapers sang, one whose
‘emancipatory’ effect was to ‘abolish one of the last masculine privileges’.189 Indeed. But it
was also a logical extension, and a softer echo, of the Court’s 1950s-era judgments repealing
a husband’s traditional right to have the final say tout court.190 Perhaps for this reason, it was
all the more welcome.
A harder case involved a law nominally designed to protect women. At the time of reuni-
fication, the Federal Republic was one of only a handful of European nations191 that per-
sisted in prohibiting women from working graveyard shifts.192 (Exceptions were made for
industries—such as healthcare and entertainment—that deemed nighttime work indispen-
sable.) The ban was justified on the grounds that women’s chronobiology made nocturnal
labour particularly noxious, and that such biological factors were compounded by the real-
ity that women continued to perform most household labour. A woman who worked the
graveyard shift, it was argued, could expect no rest by day.
In a January 1992 judgment, the First Senate considered these justifications and found
them wanting.193 Medical research suggested that nighttime labour was insalubrious for all
workers, male as well as female.194 The state could not respond to a uniform risk with regula-
tions that impeded the professional prospects of women only. As for housework, the Senate
suggested that women need not suffer vocationally from a stereotype that already harmed
them socially. The real risk, again, was for all workers—male or female—who had children
to rear or households to run. And that risk, the Senate ruled, was better met by regulations
tailored to the specific problem than by crude approximations tied only to gender.195 The
same held for concerns that it was unsafe for women to travel to and from a graveyard shift.
The state must not impose on women the burden of its failure to protect them.196
Perhaps the Court’s assessment of the gendered division of household labour was overly
optimistic; research continued to suggest that most German men did precious little at
home.197 But the Court was clearly taking seriously the egalitarian letter of Article 3.
The same was true in the sensitive and controversial area of transsexualism. Back in
1978, the Court had ruled that transsexuals must be allowed to alter the official registration
of their gender.198 At the same time, the Court signalled that it was permissible—perhaps
necessary—for Parliament to regulate this complex field. Parliament took the hint, passing
a Transsexuals Act in September 1980. The law allowed transsexuals to change their official
name and gender, but only after reaching the age of twenty-five. The Court struck down the
registration provision in 1982,199 and the name provision eleven years later.200
In its decision dated 26 January 1993, the First Senate wrote that the law could discrimi-
nate between transsexuals under and over the age of twenty-five only if it had a compelling
reason to do so.201 But in this case the compelling reasons ran the other direction. The years

187 ibid 23–24. 188  Hanno Kühnert, ‘Jedem den Seinen’ Die Zeit (29 March 1991).

‘Im Zweifel durchs Los’ Der Spiegel (18 March 1991).

189 
190  See 3 BVerfGE 225 (1953); 10 BVerfGE 59 (1959). See the discussion in Chapter 1.
191  Belgium, France, and Austria were the others.
192 See Sibylle Raasch, ‘Gleichstellung der Geschlechter oder Nachtarbeitsverbot für Frauen?’ (1992) 25

Kritische Justiz 427.
193  85 BVerfGE 191 (1992). 194  ibid 207–08. 195 ibid 209. 196 ibid 210.
197  See Raasch (n 192) 428–29 (quoting the following social science conclusion: ‘92% of men who live together

with a female partner feel barely burdened by household labor. And rightly so: they do all but nothing’.).
198  49 BVerfGE 286 (1978). 199  60 BVerfGE 123 (1982). 200  88 BVerfGE 87 (1993).
201 ibid 98.
256 Karlsruhe Republic, 1990–2001

just prior to one’s twenty-fifth birthday, the Senate observed, were pivotal years of personal,
educational, and professional development. A regime that required a transsexual to live with a
new gender but an old name would create ‘constant strained situations in the workplace, in the
classroom, in interactions with the authorities, and in daily life’.202 This circumstance was con-
stitutionally intolerable, and the Court—without suggesting a new minimum age—declared
the relevant provision of the Transsexuals Act null and void.203
The decisions just discussed reflected—some might say hastened—profound societal
changes. However haltingly, gender equality had advanced during the life of the Bonn Republic.
On questions of gender, many considered East German policy to be the more progressive, and
in this regard the Court’s aggressive, post-reunification enforcement of the Basic Law’s equality
provisions can be seen as an extension of its integrationist role. It was an extension with which
many traditionalists were sorely displeased. Some of them fought back. In the aftermath of
the Court’s Abortion II judgment—and of the federal legislation promulgated in response to
that judgment—Bavaria’s conservative state government passed stiff laws regulating abortions.
Under the new laws, only gynaecologists or related specialists could perform abortions, but no
physician could earn more than a fourth of her annual income from performing abortions. All
doctors, moreover, must refuse to perform an abortion if a woman failed to explain her reasons
for seeking one. Bavarian physicians challenged these provisions before the Constitutional
Court, which, broadly or narrowly, invalidated them all—the specialization requirement as a
violation of physicians’ occupational freedom under Article 12(1) GG, the others as beyond the
competence of the states or preempted by federal abortion law.204
The Bavarian Abortion judgments earned the Court plaudits from the liberal press—
including the critics of the Abortion II judgment—and ire in Bavaria itself. Such Southern
indignation echoed an earlier, thunderous clash between Munich and Karlsruhe. That
tumultuous controversy—to the astonishment of nearly everyone involved—unloosed the
greatest crisis the Court had faced in more than forty years.

III.  Freedom of Conscience and Expression

The fall of the GDR, and the subsequent reunion of Germany’s divided halves, was the
incisive political event in the life of nearly every German who experienced it—certainly
of every German with no recollection of the Second World War. The impression left by the
events of autumn 1989 was indelible, and not only for Germans. The heroes of the hour were
East German dissidents; the iconic images those of mass protest rallies in East German
cities—in Dresden, East Berlin, and above all, Leipzig. The early and enduring goal of the
civil rights groups—most prominently the ‘New Forum’—was open public discussion pro-
pelled by freedom of thought and expression. Such cries for free expression and assembly
during the twilight months of the GDR led—indirectly but inexorably—to a reconsidera-
tion of these rights, and of their limits, in the united German Republic.
The same was true for questions of conscience. The German Democratic Republic had
been a profoundly secular, even atheistic state. Across four decades, this official stance of
non-religion or anti-religion profoundly shaped the beliefs (or unbelief) of the citizenry.
Religious belief and confessional attachment were drastically weaker among East Germans
than among their Western compatriots.205 This fact raised complicated questions about the

202 ibid. 203  ibid 101–03.

204  See 96 BVerfGE 100, 102 (1997); 97 BVerfGE 117, 120 (1997); 98 BVerfGE 265 (1998).
205  This discrepancy has endured. In a 2012 study, only 13 per cent of people living in the former East Germany

said they had always believed in God; 52 per cent identified themselves as atheists. See Tom W. Smith, ‘Beliefs
 Freedom of Conscience and Expression 257

role of religious instruction—typically a core aspect of the curriculum—in the elementary

and secondary schools of the new Eastern states. Indirectly, it fanned controversy concern-
ing the role of religion in the classroom more generally—a controversy that exploded in a
crisis engulfing Court and country.

A.╇Freedoms of expression and assembly

One striking feature of the protests that preceded and the celebrations that followed the
opening of the inner-German border was the frequent waving of the Federal Republic’s
flag—the banner of black, red, and gold that has served, since 1848, as the traditional tricol-
our of German republicanism. Owing in part to a post-Third Reich reluctance to stress the
outward emblems of nationalism, Germans have been less showy with their flag than other
nations. But the black-red-gold banner bears immense historical significance. During the
Weimar era there was a veritable battle of the banners: supporters of the Republic flew the
black, red, and gold; its enemies waved black, red, and white—the colours of the Wilhelmine
Empire. Flags were a form of politics by other means.206 During the Third Reich, the repub-
lican tricolour disappeared, replaced by another, ubiquitous, notorious banner. The Basic
Law enshrined the republican tricolour as the official flag of the Federal Republic.
Whether the flag enjoyed constitutional protection as well as constitutional signifi-
cance was hotly disputed. The text of Article 22(2) GG declared only that ‘[t]â•„he federal
flag is black-red-gold’. Section 90(a) of the criminal code was more specific, threatening
imprisonment or fine to anyone who ‘disparages [verunglimpft] the colours, flag, crest, or
hymn of the Federal Republic of Germany’. The law’s constitutional validity had long been
questioned.207 It was formally challenged in a pair of cases considered during the ‘year of
German unity’. One case involved an alleged defilement of the federal flag, the other an
imputed profanation of the national hymn.
The Court decided both cases on 7 March 1990—less than nine months after the
United States Supreme Court decided Texas v Johnson, the landmark flag-burning case.208
The German flag case involved the publication of a slender volume called Just Leave Me
Alone, an anthology of anti-military prose and verse, the back cover of which featured a
black-and-white photo of a swearing in ceremony of the Bundeswehr, in which new soldiers
stood holding an unfurled federal flag. Over the photo was depicted a male figure aiming
(behind cover of his hand) a stream of urine down toward the flag. The publisher was con-
victed under section 90 of the criminal code. His conviction was confirmed on appeal, and
he challenged section 90 before the Constitutional Court.
The First Senate treated the publication as a work of art, thereby implicating the pro-
tections for artistic freedom in Article 5(3) GG, which did not allow for limiting legisla-
tion, rather than the speech protections of Article 5(1), which did.209 As the Court had long
held, encroachments on artistic freedom were justified only if they furthered other con-
stitutional interests of equal or greater rank.210 In this regard, the First Senate found that
protection of the flag was rooted in the constitution. Article 22 GG did not furnish such
protection directly, but it did presuppose the state’s right to use certain symbols—the flag

about God across Time and Countries’ Report for ISSP and GESIS (18 April 2012) <http://www.norc.org/PDFs/
Beliefs_about_God_Report.pdf>.
206╇ See Christoph Gusy, ‘Anmerkung’ (1990) 45 JuristenZeitung 638, 640 (‘Thus the political battle against the

Weimar Republic was essentially a battle against its colors’.).

207╇ See the discussions in Günter Bemmann, Meinungsfreiheit und Strafrecht (Athenäum 1981) and Gerald

Grünwald, ‘Meinungsfreiheit und Strafrecht’ (1979) 12 Kritische Justiz 291, 293–96.

208╇ 491 US 397 (1989). 209╇ 81 BVerfGE 278, 289–90 (1990). 210╇ibid 293.
258 Karlsruhe Republic, 1990–2001

among them—to appeal to the loyalty (Staatsgefühl) of its citizens.211 As emblems of the
Federal Republic’s free democratic basic order, state symbols enjoyed constitutional protec-
tion. This protection was not boundless—the state could not arbitrarily multiply the num-
ber of its symbols—but neither did the constitutional guarantee of artistic freedom exclude
the possibility of limits designed to protect official iconography.212
The key to balancing artistic freedom against protection of state symbols was to interpret
correctly the work of art in question.213 And this, the Senate held, the ordinary courts had
not done. They had construed the collage on the publication’s cover as an assault on the flag
itself, and upon the Republic for which it stood. But in context the image was primarily
anti-military and only secondarily anti-state.214 What’s more, allowances had to be made
for the publication’s satirical thrust. The point of satire is that it is pointed. Its purpose is to
alienate and give offence; it employs exaggeration and irreverence to achieve this effect.215
The ordinary courts’ failure to interpret the publication as a work of satire had distorted
the balance between symbol-protection and artistic liberty. Accordingly, the complainant’s
conviction could not stand.216
Nor, the First Senate ruled in the companion case, could the conviction of an obscure
Nuremberg publisher who produced a salacious parody of the national hymn, ‘Deutschland
über Alles’.217 The parody’s author had replaced Hoffmann’s paean to ‘German women,
German faithfulness / German wine and German song’ with a mock celebration of ‘German
Turks, German Pershings/German Big Macs, and German punk’; and, elsewhere, of
‘German cola, German peepshows/German Marks and German sperm banks’.218 Criminal
prosecution rescued this merry exercise from instant oblivion. Full citation in a published
opinion of the Constitutional Court conferred immortality.
In its judgment the First Senate said nothing of the poem’s artistic merit, but concluded
without difficulty that it was a ‘work of art’ enjoying constitutional protection.219 As in the
Federal Flag case, it was a work of art that the ordinary courts had wrongly construed.220 It,
too, was a work of obvious satire; it sought its effect by wresting the national hymn’s ‘ide-
alizations’ into ‘exaggerated negative descriptions of our lived reality’.221 The suppressed
poem need not be read as an attack on the national hymn or on the state itself. It could be
seen instead as reaffirming the nation’s ideals by excoriating contemporary German soci-
ety’s failure to live up to them.222 Once again, the ordinary courts’ misinterpretation of the
artwork itself propelled an erroneous balancing of the relevant constitutional values. As in
the companion case, the Senate quashed the challenged conviction.
The judgments were controversial, not least because the ‘works of art’ thus granted con-
stitutional protection were, to many observers, deeply reprehensible. Critics castigated
the Court for countenancing ‘libertinage’.223 Others were troubled by the Court’s unilat-
eral conferral of constitutional value on state symbols. ‘The Federal Constitutional Court
presumes for its part’, wrote one commentator, ‘a value-setting competence: which values
are “protected by constitutional law” is no longer determined by the Basic Law, but by the
Federal Constitutional Court’.224 Whether or not the Court was guilty of overreaching, it
was clearly willing to enforce artistic and expressive freedoms more robustly than it had
done before.
The same was true of associative freedoms. In a June 1991 judgment, the First Senate
held that the right of assembly guaranteed in Article 8 GG applied not only to persons

211 ibid. 212 ibid 294. 213 ibid. 214 ibid 295. 215 ibid. 216 ibid 297.

217  81 BVerfGE 298 (1990). 218  ibid 298–99. 219 ibid 305. 220 ibid 306.
221 ibid 307. 222 ibid.
223  Horst Sendler, ‘Liberalitӓt oder Libertinage?’ (1993) 46 NJW 2157, 2158. 224  Gusy (n 206) 641.
 Freedom of Conscience and Expression 259

supporting a given assembly’s aims, but to those also who wished to participate critically.225
Police had expelled thirty to forty people from an indoor meeting of the tiny Republicans
Party (Die Republikaner). A regional administrative court sustained the police action on
the ground that the persons expelled—who decried the featured speaker as a ‘disguised old
Nazi’—aimed to interrupt the meeting or prevent it altogether. The First Senate reversed,
ruling that Article 8’s protection extended to ‘every German who wishes to take part’ in a
public meeting.226 The right of participation encompasses not only the right to support a
meeting’s goals, but the right to oppose and denounce them.227 The right did not extend
to hindrance or obstruction, but in this case the protesters’ actions had not reached that
threshold. Their expulsion was unlawful.
Four years later, in a sharply divided decision, the First Senate went much further to
shield certain types of protest from expansive criminal sanction.228 The underlying facts
involved another anti-military protest from the early 1980s—a protest, as in the Brokdorf
case,229 against NATO plans to plant nuclear missiles and launching facilities on West
German soil. In May 1983, protesters conducted a ‘sit-in blockade’ (Sitzblockade) at a spe-
cial munitions facility that housed ‘Lance’ model short-range missiles. The protesters, who
sat in the streets and blocked military vehicles’ access to the facility, were arrested and
convicted for the crime of ‘coercion’ (Nӧtigung). After several failed criminal appeals, the
protesters levelled a constitutional challenge on the ground that their convictions violated
the retroactivity ban of Article 103(2) GG. Ordinary citizens could not have known, they
argued, that a criminal ban on ‘coercion’ would apply to passive resistance, to a sit-in block-
ade on a public highway. Not until twelve years after the sit-in would the First Senate reach
the constitutional question.
The relevant criminal code provision—section 240—had its origins in the
late-eighteenth-century Prussian Code but received its modern formulation during the
Nazi era.230 The Third Reich iteration of the law, promulgated in 1943, had a decidedly
illiberal flavour, linking the crime of coercion with the ‘healthy sentiment of the people’
(gesunde Volksempfinden). The law was amended in 1953, but only to replace this loaded
National Socialist phrase with a generic reference to ‘reprehensibility’ (Verwerflichkeit).231
Over the ensuing decades the ordinary courts generated an enormous jurisprudence con-
struing this provision of the criminal code. The resulting conceptual thicket was dense and
demanding, but over time a trend emerged that expanded the notion of coercion from a
strict emphasis on ‘violence’ [Gewalt] and ‘application of force’ [Kraftentfaltung] to include
other forms of ‘compulsive effect’ [Zwangswirkung]. In its 1995 Sit-in Blockade judgment,
the First Senate considered whether expanding the concept of coercion to include a peaceful
sit-in ran afoul of the retroactivity ban.
By a vote of 5:3, the Senate concluded that it did. In the Court’s view, judicial construction
of section 240 had expanded the provision’s reach beyond what reasonable citizens could
have foreseen from the law’s text.232 Article 103(2) GG required that citizens be given notice
of the possibility that certain activities will provoke criminal sanction; judicial doctrine
was insufficient notice.233 If this ruling left a gap in the law of crimes, it was for the legisla-
ture, not the courts, to plug it.234 By punishing conduct not foreseeably banned by the law’s
text, the police and ordinary courts had offended Article 103.

225  84 BVerfGE 203 (1991). 226 ibid 209. 227 ibid. 228  92 BVerfGE 1 (1995).

229  Discussed in Chapter 4.
230  See Knut Amelung, ‘Sitzblockaden, Gewalt und Kraftentfaltung’ (1995) 47 NJW 2584, 2584–85.
231 ibid 2585. 232  92 BVerfGE 1 (n 228) 18. 233 ibid. 234 ibid 19.
260 Karlsruhe Republic, 1990–2001

It was a divided and controversial judgment.235 As seen in Chapter 4, the First Senate con-
sidered roughly the same question nine years earlier and, splitting 4:4, reached the opposite
outcome.236 It was rare for the Court to reverse itself after less than a decade. Critics natu-
rally associated the shift with changes in the Senate’s membership.237 Negative reactions
to the January 1995 judgment fed on broader apprehensions that the Court’s expression
and association jurisprudence was going too far. But the judgment had champions as well
as critics (the overturned 1986 judgment had been more heftily criticized), and most criti-
cisms, at least initially, were mild. The real earthquake came later that year.

B. Bearing the cross: The Constitutional Court and the crucifix in 

the classroom
‘If someone had predicted twelve months ago’, wrote Rupert Scholz in the 22 December
1995 edition of Die Zeit, ‘that in the coming year nothing would be more fiercely disputed in
this country than the meaning of the Christian cross in State and Society—he would have
been laughed to scorn’.238 And yet, Scholz added, the fight over the crucifix had erupted in
the unqualified ‘battle of the year’ in the Federal Republic.239 The Constitutional Court was
at the centre of the struggle. The controversy swelled into the greatest crisis since the earli-
est days of the Court’s history. Some onlookers even doubted the Court’s survival. Others
concluded that it would live on, but never be the same again. Both groups were wrong. No
one foresaw the swiftness of the Court’s descent into crisis; few foretold the rapidity of its
resurgence.
Culturally and chronologically, Bavaria’s Catholic roots run deep. Beginning in the early
days of the Reformation, Bavaria was, after Austria, the strongest Catholic stronghold in the
German-speaking world. Bavaria’s princes, as long as Bavaria had princes, were Catholic
rulers. Political Catholicism became a force in Bavaria in the first half of the nineteenth
century, and the influence, with many permutations, has endured. Bavaria remains one of
only two German states (the Saarland is the other) with an absolute Catholic majority.
In 1983, the Bavarian state legislature issued a regulation requiring all public elemen-
tary schools—not just confessional schools—to hang a crucifix in each classroom. The law
passed with a broad majority in the legislature and was uncontroversial with the Bavarian
public. To a large degree, the regulation merely codified existing practice—a practice that
went back more than a century and had been interrupted only briefly during the Nazi era.
A small minority, however, was offended by the new law. One member of that minority
made his umbrage an object of constitutional complaint.
Ernst Seler was an anthroposophist living, as of 1986, in the Bavarian town of Schwandorf.
One day, Seler reported, his daughter Elina, then six, came home from school in tears
because she had been forced to stare ‘at an 80-centimeter tall, naked, blood-covered dead
man hanging right before her eyes’.240 Seler complained to the school, which replaced the
crucifix with a bare cross. But the conflict had only begun. The school did not adopt a gen-
eral policy, and the row flared each time one of Seler’s children entered school or changed

235 For critical commentary, see Amelung (n 230); Malte Graβhof, ‘Auswirkungen der neuen

Sitzblockade-Entscheidung des BVerfG’ (1995) 48 NJW 3085.

236  See 73 BVerfGE 206 (1986).
237 See Carl-Friedrich Stuckenberg, ‘BVerfGE 92, 1—Sitzblockade (mit E 73, 206 Mutlangen)’ in

Verfassungsrechtsprechung (n 1) 556.
238  Robert Leicht, ‘Auf der Suche nach der verlorenen Utopie’ Die Zeit (22 December 1995).
239 ibid. 240  In ‘Das Kreuz ist der Nerv’ Der Spiegel (14 August 1995).
 Freedom of Conscience and Expression 261

classrooms. For a time, Seler placed his kids in private school. But when that proved too
costly, he returned them to public school—and filed a lawsuit.
For many years, the suit was unsuccessful. When, in 1991, a Bavarian administrative
court declined to review Seler’s case, Seler challenged this and other lower-court decisions
in Karlsruhe.
It wasn’t the first time the Court had dealt with a crucifix in a public place. In 1973, the
First Senate granted the complaint of a Jewish lawyer—whose Jewish client sought redress
for damages caused by Nazis—who objected to arguing his case in a courtroom adorned by
a cross. The First Senate agreed that it violated the lawyer’s religious freedom to be forced to
plead his client’s cause ‘under the cross’.241 In his complaint two decades later, Ernst Seler
argued that the same was true of Bavaria’s requirement that a crucifix preside over his chil-
dren’s efforts to learn the alphabet.
A sharply divided First Senate agreed. In a judgment dated 16 May 1995, the First Senate
admitted the complaint and annulled the law.242 The requirement that public school chil-
dren study ‘under the cross’ ran afoul both of Article 4(1) GG, which guaranteed freedom of
faith and conscience, and Article 6(2), which made the care and education of children ‘the
natural right of parents’.
How so? In the Article 4 context, the Senate majority stressed the core principle that ques-
tions of religious faith were matters of individual choice.243 With respect to such choices the
state must neither prescribe nor forbid; it must remain neutral.244 The state’s duty of neu-
trality, moreover, had both a positive and a negative dimension. The state must not inter-
fere with an individual’s religious exercises, nor may it unduly promote certain religious
precepts or practices—or symbols—over others. In connection with Article 6, Article 4
secured the right of parents to oversee the religious and ideological (weltanschaulich) edu-
cation of their children.245 Did that right preclude the mandatory hanging of crucifixes in
public schoolrooms?
The answer depended on the symbolic significance of the cross itself. The Court’s assess-
ment of that significance was the judgment’s most controversial feature. The cross was not,
the Senate maintained, merely the emblem of a ‘Western civilization [Kultur] influenced
by Christianity’. It was the symbol, rather, ‘of a specific religious conviction’.246 The cross
was, and had always been, one of ‘the specific symbols of the Christian faith. It is indeed
[Christianity’s] faith symbol par excellence’.247 A cross on the schoolroom wall was more
than a generic badge of Western cultural values or a universal appeal to charity and broth-
erly love. It had, in addition, an ‘appellational character’. It extolled the beliefs and precepts
typified in the cross as ‘exemplary and worthy of observance’.248 The cross’s effect upon
school children was evangelistic (missionarisch); and in the realm of religious belief, the
constitution forbade the state to play a missionary role.249 The Bavarian ordinance contra-
vened this constitutional command.
Three justices—Otto Seidl, Alfred Sӧllner, and Evelyn Haas—dissented vigorously.250
The dissenters emphasized the case’s federalism component (the constitution committed
control over public education to the states, so the Court should defer to Bavaria’s educa-
tional decisions) and de-emphasized the confessional importance of the cross. The dissent-
ers stressed, moreover, that while the constitution required state neutrality on confessional
questions, it did not impose religious indifference or prescribe official laicism.251 The right
of religious freedom was not a right to hinder religion.252 In any case, having the cross

241 35 BVerfGE 366, 375 (1973). 242  93 BVerfGE 1 (1995). 243 ibid 15. 244  ibid 15, 16.
245 ibid 17. 246 ibid 19. 247 ibid. 248 ibid 20. 249 ibid 23. 250 ibid 25–37.
251 ibid 29. 252 ibid 32.
262 Karlsruhe Republic, 1990–2001

in constant view would affect Christian and non-Christian students in different ways. To
the believer, it could stand as a reminder of the Son of God’s sacrifice for the redemption
of humankind—as suggested by the Senate majority. To the unbeliever, however, it could
stand simply for one of the central goals of the state school system—‘namely, the transmis-
sion of the values of a Christian-influenced Western culture’.253 In Bavaria, especially, the
cross was not so loaded a symbol as the majority suggested. It appeared in secular buildings
of various descriptions. The prominence of the symbol in diverse contexts and multiple set-
tings deprived it of any ‘missionary character’.254
Although the majority and the dissenting opinions were forcefully phrased, nothing in
them suggested that the case was unusual or extraordinary. There was certainly no indica-
tion that the justices had any premonition that the judgment would unleash the fiercest
popular and political assaults the Court had faced in forty years. The backlash, however, was
swift and fierce, thunderous and widespread. The Federal Republic had never seen anything
like it. In striking down the mandatory cross, the Court had struck an open nerve. The
popular outcry resounded in an apoplexy of howls confused.
It was strongest, of course, in Bavaria. Theo Waigel, CSU chairman and federal finance
minister—for whom recent Court judgments on finance and taxation had been a recurring
headache—called for a constitutional amendment that would spare Bavaria the indignity
of bowing before the Court’s incredible decision. Waigel railed that the Court’s decision,
not the Bavarian ordinance, violated the Basic Law.255 Ingo Friedrich, who stood in for
Waigel as the CSU’s acting chief, called for a boycott. In an interview with Der Spiegel,
Bavaria’s minister president, Edmund Stoiber (CSU), styled the decision ‘a judgment
of intolerance’.256 Asked when the crosses would come down from the classroom walls,
Stoiber responded, ‘Initially not at all’.257 ‘We no longer have a legal foundation’, Stoiber
explained, ‘for the duty to post crosses in schools. But this does not mean that we mustn’t
hang crosses generally’.258
Hans Maier, a political scientist and Bavaria’s former minister of culture, was blunter
still. Maier denounced the decision as ‘pure nonsense and arrogance’, against which resist-
ance was in order.259 Asked whether Bavarian schools should ignore the judgment, Maier
answered, ‘Yes, at all costs’.260 Maier opined further that the framers of the Basic Law ‘would
roll over in their graves if they saw what their text had become in the hands of five justices: a
pretence for State-commanded irreligion’. Then, in a gesture that became a common trope
of the popular onslaught against the judgment, Maier recalled the time when, as a small boy,
he watched Nazi storm troopers remove the cross from his schoolroom. ‘I would never have
thought it possible’, said Maier, ‘that half a century later a Court erected for the protection
of our constitution would dare to demand a similar disgrace’.261 Some Bavarian politicos
were not only defiant but militant, even menacing. Sepp Ranner, an agrarian functionary
and CSU politician, wrote to the Oberbayerisches Volksblatt that ‘[t]‌he justices and the com-
plainants ought to come down here themselves and remove the crosses from the schools
with their own hands. We farmers, of course, will await them with threshing flails’.262
Not long after the judgment was announced, Stoiber, Waigel, Maier, and other Bavarian
officials joined Church leaders and some 30,000 citizens in a protest march in Munich’s
Odeon Square.263 In an impassioned and defiant speech, Stoiber thundered that ‘the

253 ibid. 254 ibid 33. 255  ‘Das Kreuz ist der Nerv’ (n 240).

256  ‘Die Kreuze bleiben’ Der Spiegel (14 August 1995) 33. 257 ibid 32.
258  ‘Die Kreuze bleiben (n 256) 34. 259  ‘Purer Unsinn und Übermut’ Focus (14 August 1995) 44.
260 ibid. 261 ibid. 262  In ‘Das Kreuz ist der Nerv’ (n 240).
263  ‘Heiliger Edmund, bitt’ für uns’ Der Spiegel (2 October 1995) 114.
 Freedom of Conscience and Expression 263

minority must also in certain cases be tolerant vis-à-vis the majority’.264 At the time of the
march approximately two Bavarian schools had removed their crosses.265 Less than two
months after the Court’s decision, the Bavarian state legislature proposed a law that would still
require the hanging of a crucifix in each public school classroom, but would allow the principal
of each school to make adjustments in cases of conflict.266 The new proposal was impossible to
square with the Court’s judgment. It was construed, naturally enough, as a shout of defiance
and a declaration of war.267
Outrage was by no means limited to Bavaria. Helmut Kohl, the federal chancellor, called
the judgment ‘incomprehensible’, and complained that it endangered the values of Western
civilization.268 Joachim Hӧrster, the CDU/CSU floor leader in the Bundestag, called for a par-
liamentary debate on how ‘the majority of the German people can be protected against extor-
tion by minorities’.269 Rupert Scholz, vice chair of the Union faction in the Bundestag, sneered
that ‘[t]‌he Court is not the Pope of the Republic’.270 Jürgen Augustinowitz, another CDU par-
liamentarian, called the judgment ‘unbearable’.271
Church leaders spoke out as well. Cardinal Joseph Ratzinger, Prefect of the Sacred
Congregation for the Doctrine of the Faith and future Pope Benedict XVI, declared himself
‘aghast’.272 Cardinal Joachim Meisner, Archbishop of Cologne, said that the Court’s judg-
ment marked ‘[a]‌black day in the life of our people’.273 (It was unclear whether, by ‘our people’,
Meisner meant Catholics or Germans.) Maria Jepsen, the (Protestant) North-Elbian bishop,
predicted that the judgment would spark ‘a new kind of Church-battle [Kirchen kampf]’.274
Letters to major newspapers repeatedly invoked, as Hans Maier had, the Nazi-ordered
removal of classroom crucifixes, as well as the persecution of Catholics during Bismarck’s
Kulturkampf.275 An educator in Germering—about 15 kilometres West of Munich—recalled
how her school teacher daringly refused to exchange the classroom cross for a photograph of
Hitler.
Many observers pictured a parade of horribles careering down a slippery slope. An edi-
torialist in the Frankfurter Allgemeine Zeitung asked whether ‘the Karlsruhe justices believe
that atheistic outsiders must be protected more strongly, the more Christian a nation is?’276
The same writer wondered in a separate editorial whether Christian parents could object if a
Muslim student wore a headscarf to school. Wouldn’t that have an ‘appellational character’?277
By the Court’s logic, shouldn’t church bells be silenced and spires dismantled? Many commen-
tators protested that the cross was a symbol of tolerance; what a bitter irony that in the name of
tolerance it should be banished from the classroom.278
Court-watchers were taken aback by the ‘intensity’, even the ‘brutality’ of popular criti-
cism.279 A wag quipped that Bavarians were so enraged they considered hanging the judges

264 In ibid. 265 ibid.

See ‘Bayern will Kreuze weiter per Gesetz anordnen’ Süddeutsche Zeitung (13 September 1995).
266 
267  See Hans Schueler, ‘Kampf angesagt’ Die Zeit (6 October 1995).
268  ‘Das Kreuz ist der Nerv’ (n 240).
269  ‘Politiker der Union kritisieren das Karlsruher Urteil’ FAZ (14 August 1995) 1.
270  ‘Worte der Woche’ Die Zeit (25 August 1995).
271  In Christian Bommarius, ‘Fünf Richter auf der Anklagebank’ Die Zeit (18 August 1995).
272 ibid. 273  In ‘Worte der Woche’ Die Zeit (18 August 1995).
274  ‘Das Kreuz ist der Nerv’ (n 240).
275  See, e.g., ‘Kreuze im Dritten Reich’ FAZ (15 August 1995); ‘Religionsbegriff des 19. Jahrhunderts’ FAZ (17

August 1995); Volker Ullrich, ‘Krieg gegen Katholiken’ Die Zeit (25 August 1995) (noting that comparisons to
the nineteenth-century Kulturkampf were exaggerated, and many attacks on the Crucifix judgment irrational,
but nonetheless reflective of ‘deep-seated historical trauma’).
276  Kurt Reumann, ‘Das Recht auf das Nichts’ FAZ (16 August 1995).
277  Kurt Reumann, ‘Toleranz ohne Kreuz’ FAZ (11 August 1995).
278  See ibid; Axel Freiherr von Campenhausen, ‘Karlsruhe fӧrdert die Intoleranz’ Rheinischer Merkur (18

August 1995) 1.
279  Christian Bommarius, ‘Fünf Richter auf der Anklagebank’ Die Zeit (18 August 1995).
264 Karlsruhe Republic, 1990–2001

in place of the crosses.280 In fact it was no laughing matter. Some of the justices received
death threats.281 Justice Dieter Grimm, who travelled to the United States shortly after the
decision was published, was asked by American colleagues whether the chancellor would
have to send troops to Bavaria to enforce the Crucifix judgment, as President Eisenhower
had sent troops to Arkansas to enforce the Supreme Court’s decision in Brown v Board of
Education.282
Even prominent liberals were dismayed. Marion Grӓfin Dӧnhoff, the grand dame of
postwar German journalism, published an elegiac essay entitled ‘Reaction of a Layperson
to the Judgment’.283 One would like to know, Dӧnhoff mused, whether the complainant was
as zealous about sparing his child from television images of sex and crime as from the sign
of the cross. ‘Citizens obviously have the feeling’, she added, that ‘now even this last remnant
that doesn’t belong to this objective-positivist world has been ripped away from under our
feet’.284 Dӧnhoff recalled that, in her flight from East to West at the end of the War, she had
carried a cross in her saddlebag. ‘Not as a fetish’, she wrote, ‘but as a token of confidence,
and in the name of hope’.285
Legal scholars were less emotional, but no less pointed in their strictures. One scholar
worried that the Court’s ‘exaggerated protection of minorities’ would raise serious difficul-
ties as, ‘in the course of the further development of a so-called pluralistic society, the num-
ber of minorities grows’.286 The same scholar echoed the common critique that the Court’s
‘strict laicism’ and ‘one-sided over-emphasis of negative religious freedom’ were at odds
with the Basic Law’s prefatory acknowledgement of ‘accountability before God’.287 ‘Under
the cloak of tolerance and minority protection’, the writer predicted, ‘arbitrary minori-
ties will feel encouraged to conduct further campaigns against the institutions, values, and
symbols of the state’.288 Another scholar complained that the Court had abandoned its role
as societal and legal peacemaker.289 Instead, the Court had divided the citizenry and has-
tened the ‘total juridification of life’.290 Some writers pointed nostalgically to former, better
times in which the Court ‘usually took first place in demoscopic rankings of credibility and
trustworthiness’.291 Bernhard Groβfeld, a professor of private law in Münster, wondered
whether the Karlsruhe deities had reached their Gӧtterdӓmmerung.292 Groβfeld, who made
clear that the country ‘needed’ the Court and should be ‘grateful’ for its existence, none-
theless complained of the Court’s inflated competences, its arrogation of powers and of
constitutional organ status, its lack of a political question doctrine, its role in softening the
separation of powers and fostering de-parliamentarization (Entparlamentarisierung).293
Groβfeld’s lament prompted an answer from Ernst Benda, who as chief justice from 1971
to 1983 knew something of public criticism of Court decisions. Though Benda thought
reports of the Court’s death exaggerated, he viewed the Crucifix judgment as ‘well-nigh
incomprehensible’.294 If criticism of the Court continued to be as persuasive as it was in the
case of the Crucifix decision, Benda suggested, the Court would be constrained to correct its

280  Wolfgang Ebert, ‘Sommerloch-Bilanz’ Die Zeit (1 September 1995).

281  Noted in ‘Muβ der Kanzler Truppen nach Bayern schicken?’ Süddeutsche Zeitung (9 December 1995) 10.
282 ibid.
283  Marion Grӓfin Dӧnhoff, ‘Reaktion eines Laien auf das Urteil’ Die Zeit (25 August 1995).
284 ibid. 285 ibid.
286 Jӧrg Müller-Volbehr, ‘Positive und negative Religionsfreiheit: Zum Kruzifix-Beschluss des BVerfG’ (1995)

50 JuristenZeitung 996, 1000.
287 ibid. 288 ibid.
289  Konrad Redeker, ‘Der moderne Fluch der Versuchung zur Totalitӓt’ (1995) 49 NJW 3369, 3369.
290 ibid. 291 ibid. 292  Bernhard Groβfeld, ‘Gӧtterdӓmmerung?’ (1995) 49 NJW 1719.
293  ibid 1719–23.
294  Ernst Benda, ‘Wirklich Gӧtterdӓmmerung in Karlsruhe?’ (1995) 49 NJW 2470, 2470.
 Freedom of Conscience and Expression 265

course.295 Elsewhere Benda defended the Court against institutional attacks, but conceded
that the Crucifix decision was ‘a dire mistake, not remedied by the retrospective explana-
tions of the chairman of the First Senate’.296
By ‘retrospective explanations’ Benda referred to a ‘clarifying’ statement issued by
Friedrich Henschel, the Court’s vice president and author of the Crucifix decision. The judg-
ment, Henschel explained, did not hold that a cross in the classroom violated the constitu-
tion; only that the state-ordered mounting of a crucifix was unconstitutional.297 Werner
Flume, an influential private law scholar, objected that such a clarification should come,
if it at all, from the united Senate.298 Rudolf Augstein of Der Spiegel thought the post-hoc
explanation ‘an unheard-of scandal’.299 In any case, the statement may have had the effect,
not of assuaging popular ire, but of encouraging defiance. Henschel elsewhere addressed
the latter phenomenon directly. ‘Stoiber must recognize’, he said, ‘that the state is the home
of all citizens, not just of Christians’.300 Henschel also said, in an implicit critique of Helmut
Kohl (and perhaps of Roman Herzog, the federal president and former chief justice) that ‘if
another constitutional organ were to be attacked in the same manner in which the Court is
[being attacked] now, we would do everything for it’.301
Other justices, too, spoke publicly in the Court’s defence. Justice Dieter Grimm stressed
in interviews and opinion pieces that, while criticism of a constitutional court was legiti-
mate and essential, no one had the right, in a Rechtsstaat, to defy its decisions.302 ‘Those
who today call for the defiance of Court decisions because they disapprove of them’, Grimm
wrote, ‘will be unable to explain tomorrow why others should follow laws … of which they
do not approve’.303 Grimm, like Henschel, was part of the First Senate majority that issued
the Crucifix decision.
Jutta Limbach, the chief justice, observed in an interview with Der Spiegel that ‘of
course [natürlich]’ the justices took popular sentiment and behaviour into account when
deciding cases. Judges were not ‘free-floating intelligences that through some bare opera-
tive process derive their decisions from the Basic Law or other laws’.304 Justices of the
Constitutional Court, she acknowledged, must be societal mediators and peacemakers.
But on the other hand, ‘the Court must also have the courage to deliver an unpopular
decision, if it cannot otherwise be true to a value decision [Wertentscheidung] of the Basic
Law’.305 Limbach did not, moreover, set much store by complaints that the Court had
usurped a legislative role. For decades, politicians in both parties had been all too eager
to refer to Karlsruhe conflicts that they were too ‘quarrelsome or too tentative’ to resolve
themselves.306
As during the Court’s first major crisis forty-three years earlier, justices of both Senates
showed solidarity with one another and support for the Court as an institution. But they
acknowledged that the criticism had exacted its toll. Justice Grimm described the atmos-
phere within the First Senate as ‘not gloomy’, but added that ‘caution is in order’.307 Justice

295 ibid. 296  Ernst Benda, ‘Kritik ja—aber bitte im Detail’ Rheinischer Merkur (25 August 1995).

Pressestelle des Bundesverfassungsgerichts, BVerfG vizeprӓsident Henschel prӓzisiert das ‘Kruzifix-Urteil’

297 

(22 August 1995).
298  Werner Flume, ‘Das “Kruzifix-Urteil” und seine Berichtigung’ (1995) 49 NJW 2904.
299  Rudolf Augstein, ‘Hӓnde weg vom Gericht’ Der Spiegel (28 August 1995).
300  In ‘Worte der Woche’ (n 273).
301  Uwe Wesel, ‘Die zweite Krise—Neuer Streit steht bevor’ Die Zeit (29 September 1995).
302 Dieter Grimm, ‘Kritik ist wichtig’ Die Woche (1 September 1995)  30; Dieter Grimm, ‘Unter dem

Gesetz—Warum ein Richterspruch Respekt genieβt’ FAZ (18 August 1995) 29.

303  Grimm, ‘Unter dem Gesetz’ (n 302) (emphasis added).
304  ‘Die Grenzen sind erreicht’ Der Spiegel (28 August 1995). 305 ibid. 306 ibid.
307  In Wesel (n 301).
266 Karlsruhe Republic, 1990–2001

Bӧckenfӧrde, a member of the Second Senate, was less optimistic. ‘The Court’, he said, ‘is no
longer what it was before August’.308
Against the shrill and swelling popular outcry, the Court had some external defenders.
Rudolf von Thadden, an historian in Gӧttingen, reminded his readers that Germany was
no longer a homogenous ‘Christian’ society, and that the ‘path of Anti-Semitism’ had been
paved with ‘stones drawn from the much-invoked Western Christendom’.309 In any case, he
added, irresponsible criticism of and reckless resistance to the Court could contribute to an
‘erosion of our democratic legal order’.310 ‘God be thanked’, wrote Robert Leicht, ‘that there
are still judges in Karlsruhe’.311 Leicht branded the controversy surrounding the Crucifix
judgment as ‘scandalous’. It had given rise to a ‘pseudo-religious witches’ Sabbath’.312 Leicht
later compared the Crucifix controversy to the constitutional conflict surrounding the
European Defence Community four decades earlier. Bavarian and Christian Democratic
politicians were playing now the role that Konrad Adenauer and Thomas Dehler had
played then. ‘Dehlers come and go’, Leicht wrote, ‘but the Constitutional Court remains.
Politicians may well choose its members, but they must then bow to its decisions’. Uwe
Wesel, a law professor engaged in one of the first efforts to write the Court’s history,313 made
the same historical comparison, calling the Crucifix battle the Court’s ‘second crisis’.314 In
Wesel’s view, the defiant marches and boycott campaigns had transgressed the boundary
of legitimate criticism. But in spite of it all, Wesel predicted, ‘[t]‌he Court will press forward
as it has before—sometimes deciding one way and sometimes another. And hopefully’, he
added, ‘it will not back down … ’.
Time would quickly tell. Pending cases had already gathered clouds of controversy. ‘The
[coming] judgment will perhaps bring further unrest’, Wesel wrote, ‘but it may also show
that the justices do not allow themselves to be intimidated’.315 Bernhard Schlink—a law
professor, state constitutional judge, and a best-selling novelist—struck a similar tone when
an interviewer from Der Spiegel asked about controversial cases pending after the Crucifix
decision. ‘If the Constitutional Court is not man enough to deal with such things’, Schlink
replied, ‘what do we have it for?’316

C. ‘Soldiers are murderers’: the limits

and non-limits of freedom of speech
The most controversial pending case revolved around three words: Soldaten sind Mӧrder—
‘Soldiers are murderers’. The phrase belonged, originally, to Kurt Tucholsky, satirical
scourge of the Weimar Republic, renowned for the brash iconoclasm of his thinking and
the merciless beauty of his prose. In a 1931 essay in the magazine Die Weltbühne, Tucholsky
wrote of the First World War: ‘For four years there were entire square miles of land upon
which murder was obligatory, whereas a half hour’s distance away it was strictly forbidden.
Did I say ‘Murder’? Of course murder. Soldiers are murderers’.317 The idea had an ancient
pedigree and illustrious advocates in the history of German literature. In the nineteenth
century, Heinrich Heine wrote of ‘standing armies of hundreds of thousands of murderers’

308 In ibid. Rudolf von Thadden, ‘Bloβ kein neuer Kulturkampf’ Die Zeit (18 August 1995).
309 
310 ibid. 311  Robert Leicht, ‘Das Kreuz ist kein Maskottchen’ Die Zeit (18 August 1995).
312 ibid.
313  See Uwe Wesel, Hüter der Verfassung (Eichborn 1996); and later, Uwe Wesel, Der Gang nach Karlsruhe: Das

Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Karl Blessing 2004).

314  Wesel (n 301). 315 ibid. 316  ‘Getarnter Rechtsbruch’ Der Spiegel (18 September 1995).
317  Kurt Tucholsky, ‘Der bewachte Kriegsschauplatz’ Die Weltbühne (4 August 1931).
 Freedom of Conscience and Expression 267

and Georg Büchner called soldiers ‘lawful murderers’.318 Tucholsky’s equation of soldiers
with murderers led to a spectacular 1932 trial of Die Weltbühne’s editor, Carl von Ossietzky
(Tucholsky himself had left the country), for ‘defamation of the Imperial Army [Reichswehr]’.
Ossietzky, a future Nobel laureate, was acquitted on the ground that the phrase did not
refer to specific individuals. An unspecified collectivity, the court concluded, cannot be
defamed. Tucholsky committed suicide in exile in 1935. Ossietzky, after being interned and
tortured in the Esterwegen concentration camp, died of tuberculosis in a hospital in 1938.
The phrase Tucholsky penned and Ossietzky published had a long afterlife.
The phrase first concerned the Constitutional Court in a 1994 ‘Chamber’ (i.e. three-justice
panel) decision of the First Senate. During the first Gulf War, a pacifist and conscientious
objector displayed three bumper stickers on his car: one featuring a wounded soldier and
the text ‘Why?’; one featuring the phrase ‘Swords Into Ploughshares’, a mantra of the
German peace movement; and one with the words ‘Soldiers Are Murderers’ above a fac-
simile of Kurt Tucholsky’s signature. The man was fined in a criminal action for incitement
(Volksverhetzung) and in a civil action for defamation of a Bundeswehr soldier.
A three-justice panel of the Constitutional Court’s First Senate reversed these rulings
on the general ground that the ordinary courts, in their interpretation of the ‘Soldiers Are
Murderers’ bumper sticker, failed to recognize and rule out interpretations that might merit
constitutional protection.319 The term ‘murderers’, for instance, need not be construed as a
factual assertion that all soldiers have committed the elements of the crime proscribed in
section 211 of the criminal code.320 The criminal courts failed to consider the possibility of
a more colloquial meaning—a vehement expression of moral revulsion, but not a technical
accusation of criminal conduct. The criminal courts further failed to consider the offensive
sticker within the context created by its neighbours. The three stickers together, the cham-
ber suggested, produced a general pacifist message that cast soldiers as both perpetrators
and victims.321 The chamber also gave significance to the fact that the statement stemmed
from—and was attributed to—a writer who died in 1935. Chronologically, it could not be
reasonably construed as a specific affront to Bundeswehr soldiers.322 The statement’s target
was universal; it applied to all soldiers in all nations in all wars in all history. (If any soldiers
were excluded from such universal scope, they were soldiers of the Bundeswehr—a fighting
force, as everyone knew, that had never, in nearly four decades, engaged in live combat.)323
By failing to consider alternative interpretations, the criminal courts failed to honour the
complainant’s rights of free opinion and expression.
The chamber decision elicited a storm of controversy unlike anything ever provoked by
a three-justice panel. Ingo Friedrich, the CSU vice chair, called the chamber decision the
‘most scandalous erroneous decision [Fehlurteil] of the Federal Constitutional Court since
the founding of the Federal Republic’.324 ‘The Court’, Friedrich added, ‘should be ashamed
of itself’.325 An impassioned debate in the Bundestag—from which only the Leftist PDS
abstained—prompted a clarifying statement from the Court’s press office.326 Letters to
the editor complained of a decision that stemmed, as the writers saw it, from ivory-tower
judges in a Court captured by ideologically-driven ‘68-ers’—partisans of the iconoclastic

318  In Michael Hepp and Viktor Otto (eds), Soldaten sind Mӧrder. Dokumentation einer Debatte (Ch. Links

1996) 6, 94.
319  The decision, not included in the Court’s official reports, was reproduced at (1994) 47 NJW 2943.
320  ibid 2943–44. 321 ibid 2944. 322 ibid. 323 ibid.
324  ‘Der Bundestag nimmt die deutschen Soldaten in Schutz’ FAZ (22 September 1994) 1. 325 ibid.
326  The Press Office statement of 23 September 1994 is reproduced in Armin Steinkamm, ‘Verfassungsrichter

als ‘Rufmӧrder’’ (1995) 37 Neue Zeitschrift für Wehrrecht 45, 52.

268 Karlsruhe Republic, 1990–2001

generation of student rebellion.327 In the months that followed, many critics adduced the
Soldiers Are Murderers chamber decision as the last in a long line of decisions in which the
Court’s freedom of expression jurisprudence had become too liberal—in which freedom of
opinion had triumphed definitively and recklessly over the protection of personal honour.
Martin Kriele, a professor in Cologne, bemoaned the ‘extensive abolition of the protection
of personal honour by the First Senate of the Federal Constitutional Court’, and numbered
among the consequences of that abolition the ‘degradation of [German] democracy’ and
the ‘coordination [Gleichschaltung—a term with Nazi resonance] and banalization of intel-
lectual life in the Federal Republic’.328 Monographs appeared asking whether personal hon-
our had forfeited constitutional protection altogether.329
Some scholars were quick to rebut these charges as overdrawn.330 To some extent, the
justices rose to their own defence. Justice Dieter Grimm—judge rapporteur in free speech
controversies and putative author of the chamber decision—published a thorough essay
in the Neue Juristische Wochenschrift, in which he did not defend the chamber decision
directly, but rather surveyed the Court’s freedom of opinion jurisprudence and suggested,
between the lines, that the chamber decision was a natural outgrowth of that jurispru-
dence.331 Some observers thought this public intervention by a sitting justice unfortunate
or unseemly.332 One scholar thought the public statements of Grimm, Henschel, and others
during the aftermath of the Crucifix judgment were ‘all too embarrassing’.333 But Grimm
believed that the justices had a duty to engage in ongoing dialogue with the public and the
political branches, rather than retreat behind the anonymity of judicial independence and
the Court’s institutional right to have the final word.
Meanwhile criticism of the chamber decision mounted, fuelled by hostility to the sub-
sequent Sit-in Blockade and Crucifix judgments. In many popular and political fora, these
three decisions were cast as a triad of infamy—a collective emblem of all that had gone
wrong in Karlsruhe and in the country at large. In the meantime, a consolidated quar-
tet of cases—each implicating soldiers’ honour—was pending before the full First Senate.
Some hoped, and others feared, that the Senate would yield to escalating criticism and
calls of defiance. The Senate would release its landmark Soldiers decision less than three
months after announcing its Crucifix judgment. The entire country was watching and
waiting—wondering whether the united Senate would reverse the chamber decision of the
previous autumn.
In a judgment dated 10 October 1995, by the narrowest of margins, the Senate stood its
ground.334 The case involved the convictions of four individuals, all conscientious objec-
tors, who had written or published some variation on the theme that soldiers are murders.
One hung on a street corner a towel on which he had written (in English) ‘A SOLDIER
IS A MURDER [sic]’. Another distributed a pamphlet that asked, ‘Are soldiers potential

327  See Heinrich Balke, ‘Vorrangiger Rechtsschutz’ FAZ (26 September 1994) 15; Gottfried Lemberg, ‘Richter

als Privatphilosophen’ FAZ (26 September 1994) 15; Ernst J. Marliany, ‘Soldaten ohne Menschenwürde?’ FAZ
(26 September 1994) 15.
328  Martin Kriele, ‘Ehrenschutz und Meinungsfreiheit’ (1994) 47 NJW 1897, 1905.
329  See Ralf Stark, Ehrenschutz in Deutschland (Duncker and Humblot 1996); PJ Tettinger, Die Ehre—ein

ungeschütztes Verfassungsgut? (Otto Schmidt 1995).

330  See, e.g., Jӧrg Soehring, ‘Ehrenschutz und Meinungsfreiheit’ (1994) 47 NJW 2926.
331  Dieter Grimm, ‘Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts’ (1995) 48

NJW 1697.
332 See Rüdiger Zuck, ‘Gerechtigkeit für Richter Grimm’ (1996) 49 NJW 361, 361; Rainer Wahl, ‘Quo

Vadis—Bundesverfassungsgericht? Zur Lage von Verfassungsgerichtsbarkeit, Verfassung und Staatsdenken’

in Bernd Guggenberger and Thomas Würtenberger (eds), Hüter der Verfassung oder Lenker der Politik? Das
Bundesverfassungsgericht im Widerstreit (Nomos 1998) 81, 101.
333  Flume (n 298) 2905. 334  93 BVerfGE 266 (1995).
 Freedom of Conscience and Expression 269

murderers?’, and implicitly answered in the affirmative. A third proclaimed in a letter to

the editor, ‘All soldiers are potential murderers!’ The fourth waved a banner at a Munich
motorcycle show that read, ‘Soldiers are potential MURDERERS!’ Each complained that
his conviction violated his right, under Article 5(1) GG, to the free expression of opinions.
In three of the cases, the First Senate agreed by a vote of 5:3. In the fourth case, the justices
agreed unanimously.
The majority’s analysis began with first principles. Criminal code provisions for the
protection of personal honour were not, the Court said, unconstitutional on their face. 335
The legislature could restrict speech in the interest of personal honour, but it could not
do so arbitrarily. Specifically, Article 5 GG forbade any legislative action or judicial inter-
pretation that might cause citizens to withhold criticism for fear of sanction.336 Efforts
to preserve honour mustn’t chill speech. On the other hand, human dignity remained,
as ever, the central constitutional value and was immune to balancing against other con-
stitutional values. 337 Expressions of opinion that impinged another’s dignity forfeited
constitutional protection. But courts must proceed with caution. Human dignity was
the fount of all fundamental rights, including freedom of expression. But the sphere of
expression denied constitutional protection in the name of dignity—what the Court
called Schmӓhkritik (i.e. vituperation or calumny)—must be narrowly circumscribed.338
Moreover, a presumption in favour of free speech prevailed whenever contested expres-
sions addressed topics of public concern and might shape public opinion. 339 Such was the
case with the four complainants. The underlying dispute between pacifism and military
preparedness was of essential public interest, giving rise to the presumption in favour of
constitutional protection. 340
This presumption did not grant pacifists and others carte blanche to insult the nation’s
soldiers. The majority stressed, perhaps in response to criticism or misunderstanding of the
earlier chamber decision, that so-called ‘group defamation’ remained an actionable legal
wrong, and that the specific group of Bundeswehr soldiers was capable of being so injured.341
The majority quashed the complainants’ convictions, not because the Bundeswehr could
not be defamed but because the expressions in question might not have defamed it. The
Senate’s central criticism of the criminal court judgments was that they had not construed
the challenged utterances in their original context and had therefore misconstrued their
intended meaning.
Contrary to the findings of the ordinary courts, the penalized expressions dealt with
soldiers in general, not with specific soldiers or Bundeswehr soldiers as a group. The state-
ments were not assertions of fact, but reflections on the immorality of war—the organized
and officially sanctioned killing of humans by other humans. The English phrase ‘A sol-
dier is a murder’ could be construed as a judgment that soldiers are both perpetrators and
victims, killers and killed. (Critics grumbled that it was just bad grammar.) The ordinary
courts failed to consider these and other possible alternative interpretations. They had also
applied the concept of ‘smear criticism’ (Schmӓhkritik) too broadly. These errors might have
made the difference between affirmation and reversal of the complainants’ convictions.
As a result, the Senate reversed the specialized courts’ decisions and remanded for fur-
ther consideration.342 Soldiers, the Senate acknowledged, were understandably mortified

335 ibid 290. 336 ibid 292. 337 ibid 293. 338 ibid 294. 339 ibid.

340 ibid 303–04.
341  ibid 302. This holding dismayed scholars who hoped the Court would abolish the crime of group defama-

tion altogether. See, e.g., Georgios Gounalakis, ‘“Soldaten sind Mӧrder”’ (1996) 49 NJW 481, 484.
342  93 BVerfGE 266 (n 334) 312.
270 Karlsruhe Republic, 1990–2001

by the complainants’ ferocious diction. But Article 5 might require them to endure such
mortification.
Three justices disagreed, but only one wrote a dissent, and that dissent applied only
to three of the four cases. Justice Evelyn Haas, daughter of a Bundeswehr reserve officer,
charged her colleagues with exceeding their competence. Fact-finding, Haas maintained,
was the province of ordinary courts. This included interpretation of allegedly libelous or
defamatory statements. In Haas’s view, factual interpretations by courts of specialized
jurisdiction were immune to review by the Federal Constitutional Court.343 Haas cited a
series of critiques, both scholarly and judicial, that took the Court to task for appropriat-
ing the fact-finding prerogatives of other courts.344 Haas plainly shared these objections.
She was also skeptical of the majority’s alternative interpretations. ‘A soldier is a murder’
was bad English, not a subtle thesis on the victimization of soldiers.345 In any case, the sub-
jective meaning of a speaker was irrelevant if that meaning found no expression in what
was actually said.346 And what was said here was thoroughly reprehensible. Soldiers, Haas
wrote, ‘risk their life to spare the civil population the horrors of war and to protect civilian
lives—not least the lives of those who disdain their actions and seek to make them con-
temptible before the public’.347
Notwithstanding Haas’s strictures, the majority decision was, in important respects,
restrained. The majority did not hold, as the chamber panel held fourteen months earlier,
that the complaints were ‘obviously well-founded’. And the majority went out of its way to
hold that Bundeswehr soldiers could be defamed as a group, and that ordinary courts would
have the final say on whether soldiers had been defamed collectively in the instant cases.
But these subtleties were lost on an outraged public. Many read the judgment as unfettered
licence for libelers to brand soldiers as murderers and defame the nation’s defenders with
impunity. Fiery antagonism to the Soldiers judgment fed on flames already fanned by the
Crucifix judgment.
Volker Rühe, the federal defence minister, called the judgment a ‘political scandal’.348
Wolfgang Schӓuble, leader of the CDU/CSU Bundestag faction, called immediately for
new legislation protecting the honour of soldiers.349 Several of Schӓuble’s colleagues issued
similar demands.350 Friedrich Karl Fromme launched a frontal assault on the decision
in the Frankfurter Allgemeine Zeitung.351 Those who hoped that the Court would correct
its course, Fromme wrote, had been bitterly disappointed. Whatever the majority’s dis-
claimers, the judgment’s inevitable result was total immunity for those who called soldiers
murderers. What would the justices say, Fromme wondered, in response to a pamphlet pro-
claiming, ‘Judges are Born Criminals’? The Court could rescue its rapidly sinking prestige
only ‘if it no longer attempts to march ahead of a popular opinion it deems narrow-minded
with the imperious command: “Follow Me!”’352
The Court’s prestige was sinking. In early December 1995, about a month after the Soldiers
decision, Renate Kӧcher, director of the Allenbach Institute, a polling group, reported an
‘avalanche-like decline’ in the public’s esteem for the Court.353 Traditionally, Kӧcher noted,
the Court had rivalled the federal president and the Bundesbank—and, ironically, narrowly
eclipsed the Bundeswehr—in the public’s regard. But between the beginning of 1994 and

343 ibid 313. 344 ibid 314. 345 ibid 315. 346 ibid 316. 347 ibid 318.

348  In Hans Schueler, ‘Unter dem Talar schlotternde Knie’ Die Zeit (10 November 1995).
349 See ‘Karlsruhe—Beleidigung der Bundeswehr Stafbar’ Süddeutsche Zeitung (8 November 1995)  1;

‘Schӓuble—Soldaten Notfalls mit Gesetz schützen’ Süddeutsche Zeitung (8 November 1995) 6.

350  ‘Karlsruhe—Beleidigung der Bundeswehr Stafbar’ (n 349) 1.
351  Friedrich Karl Fromme, ‘Mit dem Kopf durch die Wand’ FAZ (8 November 1995) 1. 352 ibid.
353  Reported in Helmut Kerscher, ‘Ansehen rapide Gesunken?’ Süddeutsche Zeitung (9 December 1995) 10.
 Freedom of Conscience and Expression 271

the autumn of 1995, the Court’s approval ratings in the ‘old states’ of the Federal Republic
dropped from 51 per cent to 40 per cent, a near-historic low.
Jutta Limbach, the chief justice, suggested that the shift was temporary. She recalled ear-
lier periods—particularly the early 1950s and the mid-1970s—when the Court was the tar-
get of a popular hue and cry. The chief justice even expressed gratitude for sharp criticism,
which she said prompted reflection and renewed discussion among the justices.354 But the
judges were clearly concerned, not so much by survey results (other polls were less dire) as
by a growing rumble of dissatisfaction with the Court as an institution. It was like nothing
the Court had seen before.
The parallel with the 1950s, which came so readily to mind, was bolstered by the spread of
criticism from defiant politicians to disgruntled ‘ordinary’ judges. As noted earlier, Justice
Haas, in her dissent in the Soldiers case, joined a growing gaggle of critics who thought
the Court was encroaching on the competences of specialized courts. This group included
Konrad Hesse, the former justice, who did so much to save the Court from its crisis in
the late 1970s.355 Following the Soldiers judgment, ordinary judges began to complain. The
most jarring example was Karl-Hans Fischer, a judge in Mainz responsible, on remand, for
the case involving the public letter proclaiming ‘Soldiers are Potential Murders’. During
the proceedings on remand, Fischer lamented that the Constitutional Court’s judgment
left him no choice but to dismiss the charges against the letter’s author. Fischer went so
far as to apologize to the soldiers present in the courtroom. He then turned his fire on the
Constitutional Court. ‘It is unfortunate’, he began, ‘that through the decision of the Federal
Constitutional Court freedom of opinion increasingly takes the upper hand vis-à-vis pro-
tection of honour’. Perhaps the trend had something to do with the appointments process
for constitutional judges, a process driven ‘not by juristic qualification, but according to
proportion and party line’. The justices thus chosen had exalted themselves as a kind of
‘super appellate jurisdiction’ and ‘degraded’ courts like Fischer’s into mere ‘executors of
the Karlsruhe decision’.356 As for the Soldiers decision itself, Fischer thought it ‘arrogant,
juristically questionable, and socio-politically false’.357 Fischer’s philippic won warm praise
from Klaus Rose (CSU), chair of the Bundestag defence committee. Rose thanked Fischer
for defying the ‘Karlsruhe gagging’ (Knebelung durch Karlsruhe) and renewed the call for
corrective legislation.358
Most observers, however, thought Fischer’s ex cathedra outburst had gone too far.
Ernst-Gottfried Mahrenholz, the Court’s recently retired vice president, spoke gently of
a ‘derailment’.359 Others were less kind, suggesting that Fischer’s rodomontade—with its
talk of unbridled arrogance, doctrinal dubiety, and socio-political obtuseness—was really
a self-portrait.360
Fischer, for all his angry bluster, did adhere to the Court’s decision as he understood it.
No court called upon to implement the Soldiers decision intimated that it wasn’t bound by
that decision. This was untrue of those politicians who hoped to blunt the decision’s impact
through preemptive legislation. In this regard, whether the decision’s political opponents

354 ibid.
355 See Konrad Hesse, ‘Verfassungsrechtsprechung im geschichtlichen Wandel’ (1995) 50 JuristenZeitung 265.
356  In‘Folgeprozeß um Verwendung von Tucholskys Zitat “Soldaten sind Mörder”’ Süddeutsche Zeitung
(5 January 1996).
357  In ‘Landgericht kritisierte Bundesverfassungsgericht; Heftige Reaktionen auf Mainzer Soldaten-Urteil’

Süddeutsche Zeitung (8 January 1996).

358 ibid. 359 In ibid.
360  See ibid (SPD legal expert Herta Dӓubler-Gmelin and Green Party executive spokesman Jürgen Trittin);

‘Unter Niveau’ Süddeutsche Zeitung (5 January 1996); Horst Sendler, ‘Blüten richterlicher Unabhӓngigkeit udn
Verfassungsgerichtsschelte’ (1996) 49 NJW 825, 826.
272 Karlsruhe Republic, 1990–2001

understood it correctly is beside the point. Calls to overrule the Court by parliamentary
statute perpetuated the spirit of opposition to the Crucifix decision—a spirit that insinuated
or exclaimed, for the first time, that compliance with the Court’s judgments was optional.361
Increasing acceptance of this notion constituted the greatest threat to the Court’s authority
since the days of Thomas Dehler. It roused alarmed citizens to full-throated defences.
One of the most prominent of these was Hans-Ulrich Wehler, a Bielefeld historian then
at work on his magisterial ‘societal history’ of Germany from 1789 to the present.362 Wehler
observed that the Karlsruhe justices had been recognized as ‘Guardians of the Constitution’
in significant part because of their protection of ‘so precious a liberal achievement as the
right to freedom of opinion’.363 In Wehler’s view, the Court’s freedom of opinion jurispru-
dence, beginning with its 1958 Lüth judgment, marked ‘a milestone in the development
of the German constitutional state’. More broadly, the Court’s protection of fundamen-
tal rights ‘embodies one of the greatest domestic political accomplishments of the Federal
Republic’. The Court’s work of ‘concretising’, through constant reinterpretation, ‘the aspira-
tional values of the Basic Law’ had helped forge ‘that constitutional, legal, and social state …
that has become a badge of honour for the Federal Republic and, what’s more, one of the
most resilient cornerstones of its legitimacy’.364 As had happened in the mid-1970s and at
other times, attacks on politically controversial judgments prompted calls for perspective.
Diatribes directed at the Court’s recent offences were answered by recitations of its histori-
cal achievements. Thrusts aimed at the Court’s overreaching were parried by reminders of
the Court’s contributions. Challenges to the Court’s role in the political life of the Federal
Republic failed to gain enduring traction because many citizens perceived the impact of
that role to have been—on the whole, and in the long run—enduringly positive.
Nineteen ninety-five was an annus horribilis for the Court’s public standing. By historical
standards, approval of the Court’s judgments and esteem of the Court as an institution sank
dramatically. But the drop was only temporary. Beginning in 1996, the public’s regard for
the Court began to recover and quickly returned to its traditional high levels. Some of this
had to do with a relaxation in the rate at which the Court resolved stormy political contro-
versies. In the millennium’s few remaining years, the Court decided few cases as volatile as
the Sit-in Protest, Crucifix, and Soldiers cases—the terrible triad that came before the Court
within the span of only a few months. This reduced momentum reinforced a point often
made in defence of the Court’s great power: the Court decides only those cases that come
before it. The Court is not self-activating. The justices may not seek out political controversy,
but neither may they retreat from controversy when it arrives through authorized channels.
In this author’s view, the latter point had as much to do with the Court’s recovery from
the 1995 crisis as did the former. The public’s perception of the Court’s legitimacy has
endured across the decades not in spite of its occasionally controversial or unpopular deci-
sions but precisely because of them. When the dust and din of a given cause célèbre depart,
the German public has generally admired the Court’s willingness to face—or sympathized
with its inability to avoid—the thorny issues that come before it. As Justice Grimm told an
interviewer in late 1995, it was a felicitous result when the Court’s decisions restored societal
harmony; but ‘[t]‌he duty of the Court does not consist in the establishment of peace, but in
the implementation of the constitution’.365 Two weeks earlier Chief Justice Limbach said

361  See ‘Probieren, was passiert’ Der Spiegel (20 November 1995).

362  See Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte, 5 vols (CH Beck 1987–2003).
363 Hans-Ulrich Wehler, ‘Der Kampf gegen Karlsruhe nach den Urteilen zu Sitzblockaden, Kruzifix

und Tucholsky-Zitat führt die Rechte eine Kampagne gegen das Bundesverfassungsgericht’ Die Zeit
(1 December 1995).
364 ibid. 365  In ‘Muβ der Kanzler Truppen nach Bayern schicken?’ (n 281) 10.
 Freedom of Conscience and Expression 273

she was far less worried by the Court’s declining popularity than by the possibility that ‘the
public might believe that we allow ourselves to be intimidated’.366 In many minds, it was
to the Court’s credit that the sabre-rattling rhetoric that followed the Crucifix judgment
did not appear to affect the outcome in the Soldiers decision. As had happened in the early
1950s, the Court benefited from a conspicuous display of independence in the midst of a
gathering crisis.
In the broader perspective, the decisions around which the crisis swirled provide further,
if subtle, examples of the Court’s role in accommodating the new Eastern states within
the united German constitutional order. Post-reunification efforts to introduce plebiscitary
elements into the formal structure of the Basic Law went nowhere, but the Court partially
compensated for this by strengthening protections for speech and widening the scope of
the public sphere. It was an appropriate, if indirect, tribute to the dissidents who toppled the
GDR by the power of speech and assembly.
Reunification provided the deep backdrop to the Crucifix judgment as well. Critics were
right in their contentions that the Basic Law itself made religious gestures, and that the
Federal Republic had never embraced the strict separation of church and state idealized
in France or the United States. But reunification had vastly enhanced religious pluralism
in the Federal Republic. The country had recently incorporated millions of citizens whose
outlook was profoundly secular. Reunification created a context in which the require-
ments of state religious neutrality seemed stronger than before. This perspective may have
animated the Court’s subsequent role in brokering a compromise regarding the state of
Brandenburg’s adoption of nondenominational ethical courses,367 and its approval, in a
2007 chamber decision, of Berlin’s decision to make traditional religious instruction volun-
tary.368 The decisions that within the Western states were most divisive had an integrative
effect between East and West.
None of this is to suggest that the Court escaped the crisis unscathed. The justices entered
1996 in a manifestly chastened mood. Justice Renate Jaeger found ‘unsettling’ the increas-
ing tendency of popular and political voices to respond to Court decisions with vows of
noncompliance.369 Justice Ernst-Wolfgang Bӧckenfӧrde noted that the Court need not
assume the role, as it sometimes had a tendency to do, of ‘provident preceptor of the legisla-
ture’.370 The Court must exercise greater restraint, Bӧckenfӧrde suggested, and do more to
respect the separation of powers.
It was clear that the Court could not simply ignore the outrage that its recent decisions
had provoked. But the Court’s response was not to render railing for railing, nor to bow
before popular clamour. The justices tried, instead, to engage in dialogue with the public.
‘We need to make our judgments more plausible’, Justice Grimm conceded.371 To that end,
Grimm himself addressed an audience of professional soldiers on the topic of the Soldiers
decision,372 and personally answered hundreds of critical letters sent him after the deci-
sion was published. As noted earlier, these unofficial discussions troubled traditionalists,
but others admired Grimm’s openness. On the whole, the justices seemed more restrained
and less strident than their critics. Again and again, the justices emphasized publicly that
criticism of their judgments was welcome, even necessary, since public criticism was the
only tribunal that reviewed the Court’s decisions. Compliance with the Court’s judgments,
however, was also necessary—not because the justices were infallible, but because the
Rechtsstaat required that their decisions be final.

366 In ‘Probieren, was passiert’ (n 361). 367  104 BVerfGE 305 (2001).
368 10 BVerfGK 65 (2007). 369  In ‘Probieren, was passiert’ (n 361). 370 In ibid.
371 In ibid. 372  ‘Muβ der Kanzler Truppen nach Bayern schicken?’ (n 281) 10.
274 Karlsruhe Republic, 1990–2001

In the long run, the public agreed. For all the fierce criticism levelled in 1994–95, no
proposal to reform the Court as an institution—to restrict its jurisdiction or reduce
its competencies—gained lasting, or even serious short-term traction. The consen-
sus, even among many sharp critics, was encapsulated in Horst Sendler’s application
of Churchill’s bon mot about democracy (that it was the worst imaginable form of
government—except for all the others) to the Federal Constitutional Court. 373 At its
worst, the Court was a necessary evil; at its best, a redoubt of the Federal Republic’s
highest values, a representative of its proudest achievements. Well or ill, the Court
weathered its mid-decade crisis, and helped to consolidate and complete the constitu-
tional transition from the Bonn to the Berlin Republic. By decade’s end, it was clear that
the second postwar German Republic would, like its predecessor, retain a second seat
in Karlsruhe.

IV.  Germany and the World

That second seat would be populated, in part, by a new generation of justices who would
help shape Germany’s position in the post-Cold War world. As fate would have it, the crisis
just described coincided with a large turnover in the Court’s membership.
Criticism of the Court’s mid-decade judgments fuelled unprecedented criticism of the
process for appointing judges. One 1995 survey found that only a third of the German pub-
lic thought the justices shared their values.374 Many critics inveighed that the Court had
been captured by an elitist caste of runaway progressives who thought they knew whither
the country should go and how it ought to get there. On the other hand, in the aftermath
of very different decisions, critics complained that the Court was populated by out-of-
touch conservatives, anachronistic in their outlook and aloof from the lived reality of most
Germans. For both sides, the gap between Court and people was especially galling because
the process of appointment was so opaque. No one knew who would be chosen or how until
it was too late. Criticism of the process gained in volume and vehemence over the course
of 1995.
Some of the justices were sensible to this critique. Shortly after the Crucifix judgment, Der
Spiegel asked Jutta Limbach whether the appointment of a new justice should be preceded
by a public hearing. ‘I sympathize with such a wish’, the chief justice answered. ‘But I don’t
think it would be good if the hearing served only to overwhelm a person with notes from the
intimate sphere’—as had happened, the interviewer supplied, ‘in the USA in the case of the
black judge Clarence Thomas’.375 Limbach said she favoured an objective hearing, in which
one obtained information about a candidate’s constitutional understanding and views on
important societal issues.376
Limbach’s preference was widely shared but never adopted. Candidates for the Court
continued to be chosen behind the scenes through negotiations involving representatives
of the major parliamentary factions. The process has always forced compromise and some-
times fostered consensus. Whatever its demerits in terms of transparency, the mechanism
has generally populated the Court with centrists. The justices have faced occasional com-
plaints of partisanship, but nothing remotely comparable to the political polarization—and
public perception of partisan divide—that in recent years has visited the United States
Supreme Court.

373  Sendler (n 360) 826. 374  Noted in ‘Muβ der Kanzler Truppen nach Bayern schicken?’ (n 281) 10.
375  ‘Die Grenzen sind erreicht’ Der Spiegel (28 August 1995). 376 ibid.
 Germany and the World 275

Jutta Limbach was herself new to the Court when she guided it through the mid-1990s
crisis. Limbach joined the Second Senate in March 1994, taking the place of Ernst Gottfried
Mahrenholz as vice president with the understanding that she would become chief justice
if (as seemed likely) Roman Herzog became federal president. Limbach didn’t wait long. On
1 July 1994, Herzog became the Federal Republic’s seventh president, and Limbach became
its first female chief justice.
Limbach, a self-styled ‘practising feminist’, had been a justice senator in Berlin where she
took part in the (unsuccessful) prosecution of Erich Honecker and other GDR chieftains.
In an early interview with Der Spiegel, Limbach observed that the Basic Law was ‘the best
German constitution yet’, but needed reform, particularly of its ‘social’ provisions.377 Like
many of her fellow justices, Limbach had hoped in vain that a national assembly would be
convened to create a constitution for united Germany.378
Limbach was the first new justice to join the Court since Bertold Sommer, a judge on
the Federal Administrative Court, replaced Everhardt Franβen on the Second Senate in
July 1991. On the same day Limbach joined the Second Senate, Renate Jaeger, a judge on
the Federal Social Court (Bundessozialgericht), joined the First. Six months later Evelyn
Haas, another Federal Administrative Court judge, joined Jaeger on the First Senate. Haas
became the first woman ever nominated by the CDU. Women now accounted for five of the
Court’s sixteen justices—a ratio, Limbach quipped, that should set the standard for corpo-
rate boards and the chancellor’s cabinet.379
For the first thirty-five years of the Court’s history, a single female justice sat on the
First Senate—Erna Scheffler from 1951 to 1963, Wiltraut Rupp-von Brünneck from 1963
to 1977, Gisela Niemeyer from 1977 to 1986—and none sat on the Second. An insider’s
joke labelled the Court a ‘Group Picture with Woman’.380 When Karin Graβhof became
the Second Senate’s first woman in October 1994, the proverbial witticism spoke of ‘Snow
White Senates’—a lone lady with seven (male) ‘dwarves’.381 In one year—1994—all of this
changed dramatically. The country was pleased to see the Court more closely resemble
itself.
Two men joined the First Senate in October 1995—Dieter Hӧmig, another administra-
tive judge, and Udo Steiner, a public law professor—and two more joined the Second in
May 1996—Hans-Joachim Jentsch (CDU), a former state justice minister and constitu-
tional judge, and Winfried Hassemer, a professor in Frankfurt and operative in Hesse’s
state data protection agency. In 1998–99, two more women joined the Court—Christine
Hohmann-Dennhardt, a former judge and state government minister, and Lerke Osterloh,
a law professor. Three more men joined as well—Hans-Jürgen Papier and Udo di Fabio,
both outspoken law professors, as well as Siegfried Broβ, a long-serving judge on the Federal
Court of Justice. These latter appointments changed neither the proportion of women on
the Court (Justices Graβhof and Seibert had since departed) nor the concentration of legal
academics (Justices Paul Kirchhof and Dieter Grimm left the Court in December 1999;
Justice Ernst-Wolfgang Bӧckenfӧrde in May 1996). They also had little effect on the (puta-
tive) partisan composition of the two Senates.
The Court would carry a set of new faces into the new millennium. The new justices
immediately began to shape German society and to affect Germany’s position in the world.

377 ‘Frauen ӓndern das Klima’ Der Spiegel (7 July 1994). 378 ibid.

379 In ‘Worte der Woche’ Die Zeit (25 November 1994) (‘The Federal Constitutional Court recommends itself
as an example worthy of emulation!’).
380  ‘Gruppenbild mit Dame’ Der Spiegel (13 November 1978).
381  ‘Die Fristenregelung’ Der Spiegel (7 June 1993).
276 Karlsruhe Republic, 1990–2001

A.╇United Germany in a uniting Europe

For centuries the German Question was a European problem. In the twentieth century it
became a global problem. The problem erupted in two World Wars and was cured, tempo-
rarily, by decades of division. When Germany’s two halves reunited, the German Question
resurfaced in its most pointed formulation—how to contain the colossus at the heart of
Europe? Many world leaders—and not only they—were unsettled. Margaret Thatcher, the
British prime minister, wondered how the world could witness German reunification with-
out fearing the return of German militancy. The Cold War, for all its anxieties, had offered
stability on the German Question. Now that stability was gone. Neo-realists predicted
glumly that the West would come to miss the Cold War.
With the Cold War’s end, the German Question reemerged within Germany as well. The
reunited nation had to decide how to wield its new heft in ways that reassured its wary neigh-
bours. Already in the 1980s prominent German conservatives had called for the Federal
Republic to acknowledge the reality of its economic and geopolitical clout and to assume a
correspondingly active role in world affairs. Hans-Peter Schwarz, a political scientist and
popular biographer, wrote that Germans had moved from an early-century ‘obsession with
power’ to a late-century ‘forgetting of power’.382 The Federal Republic, Schwarz argued,
could ignore its strength no longer. The country should pursue ‘responsible power politics’
rather than shirk its global role in a prolonged penance for past sins.
There were many, both within the Federal Republic and outside it, who were deeply
alarmed by the juxtaposition, even if only rhetorical, of ‘Germany’ and ‘power politics’. The
alarm spread when the Cold War ended. The world wondered how to make the Germans
behave. Germans hoped to persuade the world that they would do so voluntarily.
Both sides saw an opportunity in European integration. From the beginning, the
European project was designed to keep the Germans at bay—to cool Franco–German
antagonism and secure an enduring, peaceful balance of power. France and the Federal
Republic, Western Europe’s two most important powers, were the driving forces in this
effort. The two countries would resume and expand their traditional roles in the aftermath
of German reunification and the end of the Cold War. Wags soon jested that European inte-
gration was designed to disguise French weakness and German strength.
Plans for ‘more Europe’ predated the fall of the Berlin Wall. They had been a favoured
scheme of the Frenchman Jacques Delors ever since he became president of the European
Commission in 1985. But as Germany’s two halves moved towards reunification, the push
for further European integration intensified. Leaders in Bonn, eager to brandish their
commitment to ‘Europe’, sped the project along, facilitating a major summit in Rome in
October 1990—less than four weeks after formal reunification—and another in December.
A year later, in December 1991, the European Council met in the Dutch city of Maastricht
to hammer out the details of a new European treaty. The treaty rechristened the European
Economic Community as the European Union, and laid plans for creating a common
�currency, the Euro. Member state leaders signed the treaty on 7 February 1992, but the
treaty would not enter into force for nearly two years.
The first waves of adversity arose in Denmark, where, in a referendum held on 2 June
1992, voters rejected the treaty by fewer than 50,000 votes. Danish voters later approved an
amended treaty with Danish exemptions. In a September 1992 referendum, French voters
approved the treaty, but just barely (51.05 per cent in favour). In Britain, the prime minister,

382╇Hans-Peter Schwarz, Die gezӓhmten Deutschen. Von der Machtbesessenheit zur Machtvergessenheit

(Deutsche Verlags-Anstalt 1985).
 Germany and the World 277

John Major, feared that a motley assortment of MPs opposed to the treaty might depose
him in a no-confidence vote. The treaty’s setback in Denmark, its narrow escape in France,
and its turbulent career in Britain raised fears among Europe’s friends and hopes among its
detractors. The treaty’s future looked wobbly. Even after navigating the shoals in Denmark
and France, the treaty faced one more crucial, surprising obstacle on the road to ratifica-
tion: the Federal Republic of Germany.
This was not because the treaty lacked support among Germany’s political elites. On
2 December 1992, the treaty was approved by a thumping majority of 543 out of 568 votes
in the Bundestag. Two weeks later the Bundesrat affirmed the treaty unanimously. A statute
confirming the treaty [Zustimmungsgesetz] was promulgated on 28 December. A week ear-
lier, parliamentary supermajorities also approved a new constitutional amendment—the
revised Article 23(1) GG—designed to facilitate further transfers of power to Europe. All
parties agreed that Germany’s political future depended on Europe’s being stable and on
Germany’s being trusted by its neighbours. Most assumed that voters agreed. Few raised
reservations about the treaty for fear of being tarred as ‘anti-Europe’.
Some observers were troubled by this ‘spiral of silence’;383 others were bothered by
the treaty itself. Hans Heinrich Rupp, a law professor in Mainz, complained that the
treaty fundamentally altered the nature of the German constitution. The Maastricht
Treaty, Rupp wrote, replaced the constitutional order of the Basic Law with another
order altogether—one subordinate to a ‘super-constitution with a different area of
sovereignty, different citizens, and different basic structures’. 384 This was not a mere
amendment to the existing constitution; it was an act of ‘constitutional re-creation
[Neuschaffung], an exercise of constitution-giving authority of which only the pouvoir
constituant, the People, can avail itself ’. 385 But the citizenry’s views on the new treaty
had not been solicited. For the second time in two years, German voters played no role
in creating a Union that would define their constitutional future. To many, it was yet
another constitutional moment in which We the People said nothing. Some sought a
spokesman in Karlsruhe.
In a constitutional complaint, groups of German voters asserted that the Bundestag law
approving the Maastricht Treaty violated a host of constitutional rights. Since most of these
were not directly affected by the law approving the treaty, the Court ruled that it had juris-
diction to consider the complaint only as it related to Article 38 GG, which guarantees to all
Germans the right to participate directly in Bundestag elections. Members of the Bundestag,
in their turn, were declared by Article 38 to be ‘representatives of the entire German people’.
The complainants contended that the treaty’s transfer of competence from the Bundestag
to Brussels was of such magnitude and scope that it undermined the Bundestag’s status as
representative of the people, and thereby offended the democracy principle enshrined in
Article 20 and shielded from amendment by Article 79.
At first blush, the Second Senate’s judgment of 12 October 1993 was consistent with
the Court’s reputation, in matters of foreign policy, as a dog that barked but did not bite.
Predictably, the Court approved the treaty law as consistent with the constitution.386
Predictably too, the Court qualified its approval with reservations about Europe’s demo-
cratic deficiencies and with a pledge of ongoing oversight. The sharpness of the Senate’s
formulations, however, was surprising. And the theoretical underpinnings of its provisos
were astonishing.

383  Hans Heinrich Rupp, ‘Muβ das Volk über den Vertrag von Maastricht entscheiden?’ (1993) 46 NJW 38, 38.
384 ibid 40. 385 ibid. 386  89 BVerfGE 155 (1993).
278 Karlsruhe Republic, 1990–2001

Article 38, the Senate observed, conferred on all citizens the right to legitimize state
power and influence its exercise by voting in Bundestag elections. The state must not vacate
this right, the Court held, through excessive transfer of Bundestag competences.387 The
Basic Law explicitly envisioned the transfer of some competences to international organs,
and its preamble explicitly endorsed European unity. But the precondition for such trans-
fers was the assurance that, within the European federation of states (Staatenverbund), the
German Volk would continue to confer legitimacy and exert influence.388 The Court used
its terms advisedly. Staatenverbund was a conceptual neologism, but one that hewed much
closer to the traditional notion of a Staatenbund (confederation of states) than to the oppos-
ing notion of a Bundesstaat (federal state). In a Staatenbund, the balance of power lies with
the member states; in a Bundesstaat, with the central power. By calling the European Union
a Staatenverbund, the Senate was defining the Union’s limits quite pointedly.
The constitutional requirement that the sovereign people legitimize and influence
state power was not, the Senate added, merely a matter of voting. Democracy presup-
posed a demos—a body of citizens who could scrutinize the actions of their rulers and
communicate with those rulers in their own language.389 The Senate cannot have meant
this literally—i.e. that a common European language was a sine qua non of democratic
legitimacy—for it immediately added that, insofar as these conditions did not yet prevail,
they might yet be developed within the institutional framework of the European Union.390
Such development, however, would take some doing. The Senate called for greater trans-
parency from the European Commission and greater efforts to create a European public
sphere.391 For now, the EU’s principal source of democratic legitimacy remained the parlia-
ments of its member states.392 So long as this was so, the advance of European integration
must not restrict the operation of ‘living democracy’ within the member states.393 A living
democracy meant a state endowed with ‘a sufficiently momentous range of competences,
in which the State’s people [Staatsvolk], in a process of political will formation led and
legitimated by itself, can develop and articulate, in order to give legal expression to, that
which—in relative homogeneity—binds it together spiritually, socially, and politically’.394
This invocation of homogeneity was explosive. In a scorched-earth assault on the judg-
ment, Joseph Weiler, doyen of European law experts, accused the Second Senate of ‘looking
backwards, like Lot’s Wife, to a polity based on the tired old ideas of an ethno-culturally
homogeneous Volk and the unholy Trinity of Volk-Staat-Staatsangehöriger as the exclusive
basis for democratic authority and legitimate rule-making’. In Weiler’s view, the Senate had
deployed a ‘late Twentieth Century version, albeit anemic and racially neutral, of what in
faraway times fed the slogan of Blood (Volk) and Soil (Staat)’.395
This was unfair. However unfortunate the Senate’s diction, and however backward-looking
its conceptual categories (the judgment relied prominently on a 1928 essay by Hermann
Heller), a more generous reading is that the Senate did not claim that a democratic state
must rest on the foundation of a homogenous Volk, but that the people themselves must be
empowered to define the terms of their (relative) homogeneity—to delineate their common
values and to give those values legal expression. By any standard, this was not happening
at the European level; and so long as that was so, the Senate insisted that it must happen,

387  ibid 182–83. 388 ibid 184. 389 ibid 185. 390 ibid. 391 ibid.

392 ibid 185. 393 ibid 186. 394 ibid.
395  See JHH Weiler, The State ‘über alles’: Demos, Telos, and the German Maastricht Decision (1995) <http://

centers.law.nyu.edu/jeanmonnet/archive/papers/95/9506ind.html> last accessed 29 May 2015. Weiler wrote

that the decision was, ‘as regards the existing Community[,]‌embarrassing; as regards its future evolution I find
the decision sad, even pathetic’.
 Germany and the World 279

to some minimum degree, at the national level instead. Specifically, this meant that ‘the
German Bundestag must retain powers and competences of substantial weight’.396
This was a hurdle of sufficient ductility that the Senate had little trouble concluding that
the Maastricht Treaty cleared it. The EU remained a federation of states (Staatenverbund),
rather than a federal state (Bundesstaat) rooted in a European Staatsvolk.397 By signing the
treaty, the member states had not surrendered their sovereignty; they had chosen only to
exercise some of their sovereignty jointly.398 The Bundestag retained powers of sufficient
variety and scope to survive scrutiny under Article 38.
But the organs of the European Union, and the German politicians who helped
empower and staff them, must not assume that this would always be so. Any transfer of
power to the supranational level must be transparent, and the treaty must not be con-
strued as a charter for the organic growth of a Brussels behemoth.399 The Senate condi-
tioned its approval of the treaty on its finding—emphatic and controversial—that the
treaty did not grant the Union’s organs power to define their own competence.400 The
treaty conferred no Kompetenz-Kompetenz. The member states themselves—with their
democratically-legitimated parliaments—remained ‘masters of the treaty’.401 The Senate
even maintained, without explanation, that the member states retained a right of unilat-
eral departure.402 (David Currie, an American constitutionalist, wrote that this passage
‘would have warmed the heart of John C. Calhoun’.)403 Any expansion of the Union’s pow-
ers required express modification of the treaty itself. With regard to the treaty’s application
within the Federal Republic, any such amendment would, as a practical matter, require the
approval of the Federal Constitutional Court.404
In his review of the judgment, Joseph Weiler fulminated that the Maastricht decision
‘constitutes a transference to the European level of the Court’s understanding of the German
polity’. Insofar as that understanding lodged the last word in Karlsruhe, Weiler’s assessment
hit home. Often that final word would be a more or less grudging endorsement: humming
and hawing, reservations and provisos, admonitions and warnings, ultimately approval.
This pattern repeated itself in the Court’s approval of the Lisbon Treaty in 2009 and of the
European Stability Mechanism in 2012.405 But always there remained the possibility of a
dramatic reversal—a point to which we shall return in our Epilogue.
Weiler was not the only Europeanist disgruntled by the Maastricht decision. Michel
Fromont, a French scholar, contrasted the Constitutional Court’s eleventh-hour,
admonitory approval of the treaty with the deferential imprimatur planted by the
French Constitutional Council in September 1992. ‘In the French legal order’, Fromont
sniffed, ‘the constitution-giver is sovereign—not, as in the German legal order, the con-
stitutional court’.406 In the aftermath of the Second Senate’s judgment, the true ‘Master
of the EU-Treaty’ would reside neither in Brussels nor in the national capitals but in
Karlsruhe.407
Many scholars joined Joseph Weiler in lamenting what they saw as the Senate’s anach-
ronistic understanding of the state. The advance of European integration since the Second

396 
89 BVerfGE 155 (n 386) 186. 397 ibid 188. 398  ibid 188–89. 399 ibid 187.
400 
ibid 192, 196. 401  ibid 198–99. 402 ibid 190.
403  David P Currie, The Constitution of the Federal Republic of Germany (University of Chicago Press 1994) 100.
404 ibid 187.
405  123 BVerfGE 267 (2009); BVerfG, 2 BvR 1390/12 vom 12.9.2012, Absatz-Nr. (1—319) <http://www.bverfg.

de/entscheidungen/rs20120912_2bvr139012.html> accessed 6 March 2013.

406 Michel Fromont, ‘Europa und nationales Verfassungsrecht nach dem Maastricht-Urteil—Kritische

Bemerkungen’ (1995) 50 JuristenZeitung 800, 803.

407 ibid.
280 Karlsruhe Republic, 1990–2001

World War, among other developments, should long since have superseded the ‘State/
Non-state’ dichotomy of nineteenth-century doctrine.408 Manfred Zuleeg, a judge on the
European Court of Justice, charged the German justices with a ‘relapse into long-obsolete
notions of sovereignty’.409 Others worried that the Court had placed itself, and not for the
first time, on a collision course with the European Court of Justice. A destructive clash
could be avoided only by mutual, voluntary cooperation.410
Observers of very different persuasions were disappointed that the Court had not
gone further. Der Spiegel dismissed the Senate’s democracy rhetoric as ‘without conse-
quence’.411 ‘Never’, the paper wrote, ‘have the Karlsruhe justices been so noncommittal
[unverbindlich] in their dealings with the rights of citizens’.412 Hans-Christian Strӧbele, a
Berlin lawyer representing the Green Party in its complaint against the treaty, lamented
that the justices had ‘invoke[d]‌democratic ideals but ignore[d] an undemocratic real-
ity’.413 Still others hailed the Court’s ‘wise restraint’, its ‘rare humility’, its return to the
‘long-disdained precept of judicial restraint’.414 Another writer referred to the ‘hesitant
blessing from Karlsruhe’, in which the justices embraced ‘pragmatic clemency rather than
perfectionist stringency’.415
The decision and its aftermath had obvious historical parallels. Like the Court’s 1973
Basic Treaty judgment, the Maastricht decision was most disappointing to ardent cham-
pions of the treaty whose constitutionality the judgment affirmed. As it had done twenty
years earlier, the Second Senate allowed a monumental international agreement to enter
into force, but only under a binding constitutional interpretation that could hinder or hob-
ble future developments. Like the first Solange judgment in 1974, the Maastricht decision
was more celebrated by opponents than by partisans of European integration. And as with
many of the Court’s major foreign policy decisions, the actual holding in the case was prob-
ably inevitable. As one commentator noted, it was ‘hardly thinkable’ that a single national
constitutional court would derail the European project when the political leaders of every
member state had already signed on.416
The judgment’s enduring significance lay in the Court’s willingness to identify demo-
cratic deficiencies in the Union treaty about which few politicians in any major party were
willing to speak. There had been little discussion or debate among the country’s uniformly
Europhile parties about the best or most democratically-legitimate paths towards fur-
ther integration. It was the contribution of the Maastricht complainants, and of the jus-
tices of the Second Senate, to get the conversation going.417 For the second time in the new
post-Cold War era, the German people had been denied direct participation in an epochal
constitutional moment. For better or worse, it was left to the Constitutional Court to speak
in their behalf.

408  Karl M Meessen, ‘Maastricht nach Karlsruhe’ (1994) 47 NJW 549, 554. Meessen described the decision as

‘three steps forward, two steps back’. ibid 549.

409  Manfred Zuleeg, ‘Die Rolle der rechtsprechenden Gewalt in der europӓischen Integration’ (1994) 49

JuristenZeitung 1, 7.
410 See Markus Heintzen, ‘Die “Herrschaft” über die Europӓischen Gemeinschaftsvertrӓge—

Bundesverfassungsgericht und Europӓischer Gerichtshof auf Konfliktkurs?’ (1994) 119 Archiv des
ӧffentlichen Rechts 564.
411  ‘Dünner Faden’ Der Spiegel (18 October 1993) 31–32. 412 ibid. 413 In ibid.
414  Hans Schueler, ‘Zur Demokratie verurteilt’ Die Zeit (15 October 1993).
415  Dieter Buhl, ‘Wer hat Angst vorm Superstaat?’ Die Zeit (15 October 1993).
416  Matthias Cornils, Maastricht in Jӧrg Menzel and Ralf Müller-Terpitz (eds), Verfassungsrechtsprechung.

Ausgewӓhlte Entscheidungen des Bundesverfassungsgerichts in Retrospektive, 2nd edn (Mohr Siebeck 2011)
529, 529.
417 ibid 530.
 Germany and the World 281

B.╇Arms and the Union: the military meaning of reunification

The Cold War was a long peace. Its frigidities hardened into a stable and enduring balance of
power. Within that balance, divided Germany was a buffer between East and West, a border
between the US and Soviet spheres of influence.
Buffers, by nature, are passive things. During the long postwar era, Germany’s geopoliti-
cal influence was almost entirely negative; what did not happen in Germany was far more
significant than what did. The Bonn Republic was rocked by seismic debates over the found-
ing and atomic arming of the Bundeswehr, and over the placement of the Western powers’
nuclear armaments on West German soil. But for thirty-five years, the Bundeswehr’s active
operations were negligible. In the years immediately following unification it was possible,
as we have seen, for the Constitutional Court to maintain that the mantra ‘Soldiers are
Murderers’ could not possibly refer to Bundeswehr soldiers because no Bundeswehr sol-
dier had ever slain a foe in battle. Though the Federal Republic joined various geopolitical
alliances, an overwhelming consensus emerged among the country’s political classes that
German armed forces could be employed only defencively and only within NATO territory.
Over several decades, the Bundeswehr was not used even in this defensive capacity.
Reunification changed things. The community of nations expected united Germany to
assume a larger role in world affairs. For many, this expectation was mingled with fear.
Increasingly, Germans themselves desired such influence—a geopolitical role for their
country commensurate with its economic heft. The immediate post-Cold War era, with its
roseate optimism regarding the efficacy and rectitude of international ‘peace-keeping’ mis-
sions, supplied ample opportunity for Germany to assume such a role.
Initially, the nation’s rulers were reluctant. The First Gulf War (August 1990 to February
1991) followed close on the heels of German reunification. At that time, the Federal Republic’s
leaders agreed with near unanimity that German forces could be used only defensively
and only within NATO or Western European Union (WEU) territory. Germany supported
the UN coalition economically, but it sent no troops to the Persian Gulf. Hans-Dietrich
Genscher (FDP), the foreign minister, clung tenaciously to the view that German partici-
pation in ‘out-of-area’ military operations was banned by the country’s fundamental law.
Genscher’s adamantine stance earned him the enmity of foreign powers but won loud
applause at home.
Klaus Kinkel, who succeeded Genscher in May 1992, was more malleable. When push
came to shove, so was Helmut Kohl. As internecine violence spiralled out of control in
Somalia and in the Balkans, Kohl’s government opted for a more active international role.
In these cases, the government resolved to deploy forces as well as donate cash. The govern-
ment’s most dramatic decisions were to send marine planes and destroyers to help enforce a
UN embargo against Serbia and Montenegro (July 1992); to place German troops in AWACS
(Airborne Warning and Control Systems) machines deployed to enforce a UN-decreed ‘no
fly zone’ over Bosnia and Herzegovina (October 1992); and to commission a contingent of
1,700 German soldiers as part of a UN humanitarian mission in Somalia (May 1993–March
1994). These operations unleashed within the Federal Republic an impassioned constitu-
tional debate. In some respects, it was an existential debate. In due course, the debate made
its way to Karlsruhe.
The multi-partisan complaint418 implicated three textual prongs: first, Article 24(2) GG,
which allowed the Federal Republic to join a ‘system of mutual collective security’ for the

418╇ Some of the MPs who joined the complaint were part of the FDP Bundestag faction. These stuck to the

old Genscher line, bucking the stance of the government in which the FDP was junior partner and of Foreign
Minister Kinkel, one of the party’s chiefs.
282 Karlsruhe Republic, 1990–2001

sake of ‘keeping the peace’; second, Article 59(2), which required parliamentary approval
of ‘[t]‌reaties that regulate the political relationships of the federation’; and finally, Article
87a(2), which decreed that, ‘[o]ther than for defence’, the military forces of Federal Republic
could be deployed ‘only insofar as expressly permitted by this Basic Law’. It was this last
provision that opponents of the actions trumpeted most loudly and government function-
aries massaged most assiduously. In the end, the Constitutional Court left this apparently
central question open.
Or did it? In a very long judgment dated 12 July 1994, the Second Senate upheld the
constitutionality of all three contested actions.419 Constitutional authority for out-of-area
deployments was to be found, the Senate held, in Article 24(2)’s provision for German
entry into mutual systems of collective security. Article 24(2) not only allowed Germany
to join such systems, it authorized the government to perform the duties associated with
such systems.420 Those duties included placing military forces at the disposal of the security
organization for the sake of preserving or restoring peace.421 Because authorization for such
deployment could be derived directly from Article 24, the justices saw no need to enter the
long-standing debate over Article 87.
This conclusion was problematic in at least two respects. First, Article 24(2) was included
in the original Basic Law of 1949; it was promulgated, in other words, at a time when the
Federal Republic had no armed forces and had no immediate prospect of acquiring them. It
was hard to see how a constitutional provision adopted seven years before the Bundeswehr
was established could authorize its extraterritorial deployment.422
The second problem was that, by ducking the Article 87 question, the Senate begged
the Article 87 question. Opponents of the operations insisted quite plausibly that, because
Article 87a(2) was the only constitutional provision that mentioned the deployment of
armed forces, constitutional analysis of such deployments must begin there. Only after
acknowledging that Article 87a(2) limited non-defensive deployments to cases ‘expressly
permitted’ within the Basic Law could the Court properly ask whether Article 24(2) granted
such permission—and whether that permission covered the three challenged deploy-
ments.423 At the very least, the Senate needed to explain why Article 24(2) was not restricted
by Article 87a(2).424 The Court’s putative non-construction of Article 87 was a de facto rejec-
tion of the strict construction.
All of the justices agreed that Article 24 authorized deployment of German military units
within the framework of NATO and WEU and pursuant to resolutions of the UN Security
Council. Four justices, however, contended that the treaties creating these organizations
did not cover military action beyond the purview of these organizations—specifically, that
the AWACS operation in Yugoslavia lay outside NATO’s original aims. 425 In the view of
these justices, the deployments expanded the treaty’s scope, and therefore (under Article
59(2) GG) required parliamentary approval, which the government hadn’t sought.426 As
always, however, the split within the Senate ran against the complainants. Notwithstanding
the reservations of four justices regarding the AWACS operation, the Senate sustained the
constitutionality of all three actions.
But it did so with an important proviso—a ‘parliamentary proviso’ (Parlaments vorbehalt),
the justices called it. Although the Basic Law allowed deployment of Germany’s armed forces

419  90 BVerfGE 286 (1994). 420 ibid 344. 421 ibid 345.

422  See Gerd Roellecke, ‘Bewaffnete Auslandseinsӓtze—Krieg, Aussenpolitik oder Innenpolitik?’ (1995) 34
Der Staat 415, 417.
423  See ibid 415–16. 424  See Werner Heun, ‘Anmerkung’ (1994) 48 JuristenZeitung 1073, 1073.
425  The four were Limbach, Bӧckenfӧrde, Kruis, and Sommer.
426  See 90 BVerfGE 286 (n 419) 372–77.
 Germany and the World 283

within international systems of collective security, in principle such deployments required

‘the prior constitutive approval of the Bundestag’.427 The justices divided on whether such
approval had been supplied in the cases at hand; but all agreed that Bundestag approval
was essential. Questions of war and peace, the Court held, were the business of the people’s
­representatives in Parliament. The justices even styled the Bundeswehr a ‘Parliamentary
Army’ (Parlamentsheer).428
One commentator quipped that this designation might have befitted Cromwell’s
Ironsides, but accurately described no modern army on earth.429 Worse still, the Basic Law
contained not a syllable on the subject. The Court based its conclusion, not on the text of
the constitution, but on ‘German constitutional tradition since 1918’.430 Lack of parliamen-
tary oversight had allowed the German Reich to slouch into war in the summer of 1914.
The Weimar constitution and the Basic Law both required that this never happen again.
Between the lines, the Senate was surely thinking also of the creeping, unilateral executive
escalation of American involvement in Vietnam.431 Such historical memories contributed
to the broad acceptance with which the judgment was greeted. Although the judgment
arguably amended the constitution on the Court’s own initiative, the decision met with
comparatively little criticism.432
Like the Maastricht judgment, the AWACS decision mingled pragmatic acceptance
of a geopolitical fait accompli with a dramatic statement of constitutional principle.
Unsurprisingly, international observers were more struck by the former than the latter.
The London Times predicted that, ‘slowly and hesitantly’, Germany would ‘re-emerge …
as a military power’.433 In Paris, Le Monde proclaimed ‘a new era in German foreign
policy’.434 A paper in Sweden went so far as to call the judgment Germany’s ‘final step
out of the shadows of the Second World War’.435 The judgment gave constitutional
imprimatur to an epochal shift in German foreign policy and marked an era in postwar
German history. Fittingly perhaps, the judgment was announced in Karlsruhe the same
day that Bill Clinton, the American president, delivered an ‘historic’ speech in front of
the Brandenburg Gate before dismissing America’s remaining ‘occupation’ troops in
Berlin.436
Within Germany itself, popular commentary focused on the judgment’s implications
for German soldiers and for Parliament’s role in shaping foreign policy. ‘It is now once
again deadly’, wrote Der Spiegel, ‘to be a soldier’.437 Die Zeit wrote that German soldiers
now were ‘duty-bound to die’ (zum Sterben verpflichtet).438 All the more reason, then, the
paper opined, to celebrate the Court’s reinforcement of parliamentary prerogative and pop-
ular sovereignty. The death of German soldiers was ‘worth a case-by-case decision of the
Bundestag’.439

427 ibid 381.
428 ibid 382. For an extended exploration of this theme, see Dieter Wiefelspütz, Das Parlamentsheer.

Der Einsatz bewaffneter deutscher Streitkrӓfte im Ausland, der konstitutive Parlamentsvorbehalt, und das
Parlamentsbeteiligungsgesetz (Berliner Wissenschafts-Verlag 2005).
429  Roellecke (n 422) 425. 430  90 BVerfGE 286 (n 419) 383.
431  See Michael Wald, ‘AWACS’ in Verfassungsrechtsprechung (n 1) 564.
432 But see Roellecke (n 422); Claus Arndt, ‘Verfassungsrechtliche Anforderungen an international

Bundeswehreinsӓtze’ (1994) 47 NJW 2197.

433  ‘A Special Relationship’ The Times (14 July 1994).
434  Henri de Bresson, ‘La Cour constitutionnelle autorise la participation de soldats allemands à des forces

internationales’ Le Monde (14 July 1994).

435  The ‘Svenska Dagbladet’ in ‘Nun siegt mal schӧn’ Der Spiegel (18 July 1994) 23.
436  See Carlos Widmann ‘Makellose Arie für die Berliner’ Der Spiegel (18 July 1994) 27.
437  ‘Nun siegt mal schӧn’ (n 435) 26.
438  Hans Schilder, ‘Zum Sterben verpflichtet?’ Die Zeit (15 July 1994). 439 ibid.
284 Karlsruhe Republic, 1990–2001

In the years following its first AWACS decision the Court was asked repeatedly to scru-
tinize foreign deployments of German soldiers.440 Invariably, the Court approved the
challenged executive action. Over time, the justices ‘seemed less willing to enforce strict
constitutional limitations on the executive’s authority over military affairs’.441 As in the
context of European integration, the justices were accused of indulging in rhetorical
panache that cloaked an underlying failure of nerve—or of masking grim Realpolitik with
glittering obiter dicta. From a comparative perspective, however, the striking thing about
the Court’s military powers jurisprudence is not that the Court has generally deferred to
executive discretion but that the Court has reviewed executive action at all. Here yet again
was the long legacy of the Court’s non-embrace, in the early 1950s, of an American-style
political question doctrine.
Furthermore, it cannot be said that the Court’s jurisprudence calling for parliamentary
approval of military action was without effect. In March 1999, for instance, when the Second
Senate approved German involvement in a NATO bombing campaign against Serbia and
Montenegro, it did so on the ground that the federal government, on four separate occa-
sions, had sought and obtained parliamentary permission. 442 The executive has not uni-
formly followed this pattern, but the general requirement of Bundestag approval for foreign
deployments has entered and shaped the country’s constitutional culture. Perhaps more
to the point, the Court owes part of its high approval among German citizens to the fact
that, in foreign affairs, the Court has wielded its counter-majoritarian power in a manner
that has reinforced (at least rhetorically) the country’s commitment to popular sovereignty.
Throughout the decade following reunification, the justices spoke in the name of democ-
racy when comparatively few leading politicians did the same.

Conclusion
The Federal Republic’s leaders saw Germany’s international engagement as evidence that
Germany’s putative Sonderweg was over. Some were quite explicit about this. In October
2001, at the outset of the NATO-directed war in Afghanistan, in which Germany took part,
Chancellor Gerhard Schrӧder linked Germany’s ‘out-of-area’ military involvement to its
overdue arrival in the West. ‘After long periods of confusion in the 19th and 20th centuries’,
Schroeder said, ‘Germany has at last joined the West. That’s what’s at stake for us. The argu-
ment that we cannot take part [in military actions abroad] because of our history no longer
holds true’.443 In other words, Germany was a ‘normal’ nation again—or perhaps for the
first time. It was a full-fledged liberal democracy entitled, in affairs foreign and domestic,
to act like one.
The government that guided Germany’s involvement in NATO’s Albanian campaign at
the end of the decade was very different from the one that launched the country’s first mili-
tary engagements at the beginning of the decade. In October 1994, three months after the
Court’s AWACS decision, the Union parties outpolled the SPD by a ratio of 41.4 per cent
to 36.4 per cent. Helmut Kohl, who continued to enjoy some of the aura he acquired as the
‘chancellor of reunification’, remained head of a Union-led government with the FDP as
junior partner. But there were signs of trouble ahead. The Union’s share in the vote had
dropped by 2.4 per cent since 1990; the SPD’s had grown by 2.9 per cent. More ominously,

440  See 100 BVerfGE 266 (1999); 104 BVerfGE 151 (2001); 117 BVerfGE 359 (2007); 118 BVerfGE 244 (2007);

121 BVerfGE 135 (2008).

441  Kommers and Miller (n 88) 205. 442  100 BVerfGE 266 (1999).
443  ‘Europe: Michael Steiner’ The Economist (13 October 2001) 52.
 Conclusion 285

the FDP’s share had dropped by 4.1 per cent, from 11 per cent to 6.9 per cent, while the
Greens had gone from barely clearing the 5 per cent hurdle in 1990 (5.1 per cent) to outpoll-
ing the FDP in 1994 (7.3 per cent). The Left-wing PDS—whose entrance into Parliament the
Constitutional Court facilitated four years earlier—garnered thirty seats in the Bundestag.
In all, the coalition’s majority over the parties of the Left was a narrow 341 to 331. If the
Left could unite, it was within striking distance of power. The PDS remained malodorous
to all established parties, but rumours of a possible SPD–Green alliance grew in volume
after 1994.
Disenchantment with the everlasting Kohl government, now in its fourth term, grew as
well. The economy sagged; unemployment was stubbornly high. During the last years of
the Kohl government, joblessness in the Federal Republic reached its highest levels since
1949.444 Easterners felt ambiguous about their new country. Many lamented the failure to
propagate a pan-German constitution in 1990. Disappointment mounted in October 1994,
when a parliamentary commission, appointed to review the Basic Law in light of reunifi-
cation, entirely ignored proposals prized by the Eastern populace—the right to work and
the right to housing, for instance, as well as stronger plebiscitary elements at the federal
level. Perhaps most disheartening, the economic condition of the Eastern states was slow to
improve. The prosperity that reunification promised had not materialized. Many ‘Ossis’ felt
that their interests were unrepresented in Bonn. Only the PDS seemed to speak for the East,
and that party was treated by its Western peers like an escapee from a leper colony.
Westerners grew disgruntled with their government as well. Germany’s slumping econ-
omy stirred talk of its being the new ‘sick man of Europe’.445 The transition from economic
juggernaut to bedridden behemoth was not a happy one. Government initiative seemed to
stall with the economy. Critics spoke of a ‘reform jam’ (Reformstau). A long-standing con-
sensus in favour of government social support seemed to be cracking; so, too, did the social
and cultural homogeneity that underlay that consensus. The country’s economic engine
was sputtering; its citizens were in a funk. The search for a scapegoat settled on the sitting
chancellor. As the September 1998 Bundestag elections approached, many suspected that
Kohl’s days were numbered.
The 1998 election returns were very nearly the reverse of those in 1990. The SPD’s share
grew by 4.5 per cent, to 40.9 per cent. The Union’s tally dropped by 6.3 per cent, to 35.1 per
cent. The Greens’ fortunes also faded, but only by six-tenths of a per cent. The party might
have done much better, if not for a platform calculated to cosset the faithful rather than
persuade the electorate. The Greens’ platform vowed to raise the price of fuel to five DM per
litre (something like thirteen dollars per gallon) and roundly condemned German involve-
ment in a popular international peacekeeping mission in Bosnia. The platform reminded
voters of the Greens’ extreme pacifist-environmentalist origins and obscured the party’s
recent drift towards the mainstream. Still, the Greens won enough seats to join a coalition
led by Gerhard Schrӧder, the new SPD chancellor. The Greens were in power for the first
time. Kohl had fallen after sixteen years at the head of government. The nation had its first
Red–Green coalition. Reformists expected big things.
A Red–Green government put Greens in the cabinet. The most prominent was Joschka
Fischer, whose colourful career climaxed with his appointment as foreign minister and vice

444  See Eckhart Conze, Die Suche nach Sicherheit: Eine Geschichte der Bundesrepublik von 1949 bis in die

Gegenwart (Siedler 2009) 794.

445  See, e.g., ‘Germany’s Economy: The Sick Man of the Euro’ The Economist 21 (5 June 1999); ‘Self-healing

for the Sick Man of Europe’ Financial Times (11 November 1999) 15; Allan Hall, ‘Germany on Way to Becoming
“Sick Man of Europe”’ The Scotsman (2 June 1999) 11.
286 Karlsruhe Republic, 1990–2001

chancellor. Only thirteen years had passed since Fischer, the first Green minister at the state
level, provoked an outcry by appearing for his oath of office in tennis shoes.
Ironically, it was Fischer who appeared before the Constitutional Court in 1999 to defend
German participation in NATO’s bombing campaign against Serbia and Montenegro.446
Fischer, long the public face of Leftist pacifism, was willing to disappoint his party’s hard-
liners for a humanitarian cause in which he believed passionately. Perhaps, too, there was
a dose of Realpolitik mingled with Fischer’s international humanitarian optimism. There
could be no more effective way to distance the party’s policy in power from its rhetoric on
the hustings.
There was also something symbolically appropriate about Fischer’s official appearance in
Karlsruhe. A decade and a half earlier, when Green members first entered the Bundestag,
the party’s representatives petitioned the Court to vindicate their right to participate in
parliamentary affairs on equal terms with members from the traditional parties. They met
with mixed success,447 but the Greens’ engagement and occasional victories in Karlsruhe
played an important role in the party’s trajectory towards the constitutional and political
mainstream. This is a telling example both of the Court’s role in integrating the country’s
political forces and of its related effect of taming the country’s political process. To complete
the image, in January 2001, Brun-Otto Bryde, a constitutionalist in Gieβen, became the first
Constitutional Court justice appointed on the Greens’ recommendation.448
Fischer’s faith in humanitarian military intervention was shared by many German leaders
throughout the 1990s. The decade was marked by broad discussion of Francis Fukuyama’s
premature announcement of ‘the end of history’.449 Experts squawked at Fukuyama’s thesis,
but few could repress the hope that the Cold War would be followed by a new era in which
liberal democracy became the global governmental norm and the international commu-
nity banded together to keep local tyrants at bay. This was the hope that capsized the tradi-
tional German consensus against foreign military involvement. The hope burned bright as
the Federal Republic, challenged on many fronts domestically, approached the beginning of
a new millennium and celebrated its Golden Anniversary under the guidance of a reformist
government.
Commemorations of the Federal Republic’s fiftieth anniversary in 1998/99 included
sober reflections about the country’s past, unease about its present, and nervous forebod-
ings about its future. But the prevailing tone was upbeat, encapsulated in a single, recurrent
word sometimes followed by a question mark: Erfolgsgeschichte, or success story.450 Der
Spiegel, at times an acerbic critic of the Federal Republic, entitled its anniversary issue, ‘The
German Miracle’.451 All things considered, this seemed the right word to describe the tra-
jectory of the Federal Republic from a conquered nation, saddled with the historical inher-
itance of unprecedented crimes, into a moral and economic leader among the community
of liberal democracies.
In many anniversary reflections, the Constitutional Court was accorded a share in the
credit for the country’s success story. Rolf Lamprecht, who had reported on the Court since
its founding, made the connection quite pointedly. ‘If the Germans have succeeded—as is

446  See Russell Miller, ‘Merely a Landmark or a Change of Course: The Federal Constitutional Court Hears

Arguments in the NATO Strategic Conception Case’ [2001] 2 German Law Journal <http://www.germanlaw-
journal.com/index.php?pageID=11andartID=37>.
447  See Chapter 4. 448  See ‘Richtig happy’ Der Spiegel (11 December 2000).
449  Francis Fukuyama, The End of History and the Last Man (Free Press 1992).
450  See Axel Schildt, Ankunft im Westen. Ein Essay zur Erfolgsgeschichte der Bundesrepublik (Fischer 1999);

Klaus Naumann, ‘Erstaunlich stabil’ Die Zeit (20 May 1999).

451  ‘Das deutsche Wunder’ Der Spiegel (17 May 1999).
 Conclusion 287

apparent both at home and abroad—in their transformation to a democratic Rechtsstaat,

then two factors have been essentially involved in that success: the canon of fundamental
rights, and the stringency of their Karlsruhe guarantors’.452 Other commentators, how-
ever, lamented (or applauded) that the Court was no longer what it once had been. Thomas
Darnstӓdt opined that what he termed the ‘Karlsruhe Era’ was now over.453 Darnstӓdt dated
the Court’s period of dominance from its Television judgment in February 1961 through
the five-month period during 1993 in which the Court delivered both its second Abortion
decision and its judgment on the Maastricht Treaty.454 Since then, Darnstӓdt contended, the
Court’s idyll was ended. Politicians had realized that resistance was an option about which
the Court could do little. Statesmen were constantly tempted to march down determined
paths despite the Court’s admonitory dicta. Thousands of crucifixes still adorned the walls
of Bavarian school rooms.455
Up to a point, Darnstӓdt was right. The Court had likely lost some public trust and
political respect. It had indisputably lost its monopoly jurisdiction. The European Court of
Justice and the European Court of Human Rights both provided alternative fora for the vin-
dication of fundamental rights. Globalization diminished the Court’s power by narrowing
its jurisdiction. More Europe meant less Germany, and perhaps, as a result, fewer trips to
Karlsruhe. A similar process had already lessened the profile of the only federal institution
ever to rival the Court in the public’s affections: the Bundesbank, now eclipsed by the newly
created European Central Bank. And yet, as both Darnstӓdt and Lamprecht noted, German
citizens continued to file complaints to the Court by the tens of thousands—and this despite
demonstrably slender odds of success. In the Court’s first fifty years, it fielded some 135,000
constitutional complaints—96 per cent of them from private citizens—and this notwith-
standing a success rate of around 2.6 per cent.456 In a country whose constitution featured
few plebiscitary elements, the constitutional complaint remained the one medium by which
citizen Everyman’s voice might be heard. As Lamprecht reported, ‘The general civil right to
call upon Karlsruhe at any time fostered democratic self-consciousness. Those who recog-
nized this possibility and, if necessary, availed themselves of it, needed no longer conceive
of themselves as subjects [Untertan]’.457
In many respects, the decade following reunification was the Court’s most difficult
since its founding. At decade’s end, however, the Court seemed secure in its traditional
role—though that role might diminish through ongoing globalization and European
­integration. On average, the public trusted the Court nearly as much as ever.458 Politicians,
who had always grumbled when a Court decision went against them, remained eager to
highlight the constitutional aspect of intractable political squabbles and shunt the question
to Karlsruhe. Often, as with the Court’s November 1999 decision on the equalization of
state finances, they were grateful when the Court found a principled way to split the differ-
ence. The world in which the Court operated had altered in dramatic ways. But the Court,
at least for the time being, retained its classical role.
Although the heady economic hopes roused by reunification were swiftly disappointed,
the geopolitical idealism fostered by the end of the Cold War lasted somewhat longer. The

452  Rolf Lamprecht, ‘“Das Über-Ich der Nation”’ Der Spiegel (1 September 1998).
453  Thomas Darnstӓdt, ‘“Mir hat keiner was zu sagen”’ Der Spiegel (17 May 1999) 26. 454 ibid 206.
455  ibid 208–09.
456  Ursula Knapp, ‘16 Richter machen “die ideale des Grundgesetzes lebendig”’ Frankfurter Rundschau

(29 September 2001) R 4-24H.

457  Rolf Lamprecht, ‘Das Über-Ich der Nation’ Der Spiegel (1 September 1998).
458  See Sascha Kneip, Verfassungsgerichte als demokratische Akteure. Der Beitrag des Bundesverfassungsgerichts

zur Qualitӓt der bundesdeutschen Demokratie (Nomos 2009) 200.

288 Karlsruhe Republic, 1990–2001

latter idealism vanished, however, with the terrorist attacks on New York and Washington
on the morning of 11 September 2001. Gerhard Schroeder, the German chancellor, was
swift and forceful in his expression of solidarity with the United States.459 Schroeder enthu-
siastically championed German involvement in the War in Afghanistan but dramatically
opposed the American-led invasion of Iraq eighteen months later. The Age of Terror would
vastly complicate German foreign policy and the country’s relationships with its allies. It
would also bring new and vexing questions before the Federal Constitutional Court.460
By sad coincidence, the 9/11 attacks coincided almost exactly with the Court’s own fifti-
eth anniversary. Fears of terrorist attacks within the Federal Republic raised doubts about
whether the Court’s jubilee celebration, long planned for 28 September 2001, should take
place at all. Many questioned the wisdom, in the tense post-9/11 aftermath, of assembling
the Federal Republic’s highest officials under one roof.461 But the show went on—a splendid
gala in the Baden State theatre that opened with a performance of The Marriage of Figaro. In
attendance were chief justices of constitutional courts from around the globe—a testament
to the Court’s leadership and influence among the world’s constitutional tribunals—as well
as the heads of the Federal Republic’s four other constitutional organs: Johannes Rau, the
federal president; Kurt Beck, president of the Bundesrat; Wolfgang Thierse, president of the
Bundestag; and Gerhard Schrӧder, the chancellor.462
The two last named might have felt a bit sheepish. Both had been publicly critical of the
Court in recent days; both had resurrected the perennial complaint that the Court was
meddling too much in political affairs. Just two days before the festivities, Thierse (SPD) had
convened a colloquium at Berlin’s Humboldt University to discuss the theme ‘Bundestag
and Federal Constitutional Court’.463 In Thierse’s telling, the Court mistakenly perceived
itself as a ‘motor of development’ in social legislation. The Court’s recent decisions regard-
ing state support for families,464 as well as inheritance and property tax,465 had burdened the
legislature unduly at a time of pinched finances and had constrained excessively politicians’
room to manoeuvre.466 Thierse repeated the age-old admonition, which he attributed to the
former justice, Wiltraut Rupp-von Brünneck, that the Court must take care not to usurp the
role of an ersatz legislature. The colloquium discussants included Ernst Benda, the former
chief justice, and Hans Jochen Vogel, the former justice minister, both principal players in
the Court’s previous clash with an SPD-led government.467
Two days later, Thierse and Schrӧder were sitting in Karlsruhe, celebrating the Court
they had lately censured. In her presidential address, Jutta Limbach noted Thierse’s and
Schrӧder’s presence on the front row with mild good humour. In the spirit of the festivities,
the chief justice began, she would leave the criticisms unanswered ‘as exercises of freedom
of speech’.468 Rau, the federal president, was less willing to let things slide. Rau dismissed
as ‘exaggerated’ recent claims that the Court mingled in political affairs too readily and
assumed legislative powers too liberally.469 The Court intervened in political decisions, Rau
noted, only when politicians asked it to do so—and the justices demanded positive action

459  See ‘Deutsche Politiker entsetzt’ FAZ (12 September 2001) 2.

460  See, e.g., 115 BVerfGE 118 (15 February 2006) (striking down, as an offence to human dignity, a law that
allowed the armed forces to shoot down a passenger plane believed to have been hijacked for terrorist purposes).
461  See ‘Feier in Zeiten des Terrors’ Süddeutsche Zeitung (29 September 2001) 7. 462 ibid.
463  Karl-Heinz Baum, ‘Thierse rügt Verfassungsrichter’ Frankfurter Rundschau (27 September 2001).
464  99 BVerfGE 216 (1998). 465  93 BVerfGE 121 (1995).
466 In Karl-Heinz Baum, ‘Thierse rügt Verfassungsrichter’ Frankfurter Rundschau (27 September 2001)

R 3-30H.
467 ibid. 468 ibid.
469  Ursula Knapp, ‘16 Richter machen “die ideale des Grundgesetzes lebendig”’ Frankfurter Rundschau (29

September 2001) R 4-24H.
 Conclusion 289

from the political branches only when political actors failed, because of unpopularity or
expense, to do what the constitution required.470 Rau praised the Court for having ‘filled
with life the Basic Law’s ideals of freedom, equality, and justice’.471
Unsurprisingly, the Court’s jubilee celebration prompted public reflections on the Court’s
place in the Federal Republic. Some reflections looked forward, others backward. Ursula
Knapp, writing for the Left–Liberal Frankfurter Rundschau, predicted that the events of
11 September would not diminish the Court’s importance. On the contrary: nearly every
announced reaction to the attacks would implicate the constitution, and therefore the
Court’s jurisdiction, in some way or other.472 For better or worse, Knapp observed, the
Court took questions of peace and war—and of parliamentary and executive power—quite
seriously.473 One could expect this to continue and to intensify. More broadly, Knapp noted
that the Court’s immense authority depended largely on the fact that all parties to consti-
tutional disputes left feeling that they had had a hearing—that their complaints had been
considered, their grievances understood.474 This was a product both of the Court’s make-up
and of its methodology—of the institutional pressures (primarily the requirement of a
two-thirds parliamentary majority for confirmation) that lead to the Court’s being popu-
lated chiefly by centrists, and of the proportionality framework that requires the Court to
assert and assess the constitutional values at play on both sides of any given dispute.
Other anniversary assessments were unabashedly panegyric. Helmut Kerscher, writing
in the Süddeutsche Zeitung, asked what the Federal Republic would be like without the
Federal Constitutional Court. ‘It would be a republic’, Kerscher wrote, ‘with even more
power for the rulers and the parties, with less stability, lower respect—and with fewer free-
doms for citizens, with even less equality for women’.475 Minorities, in particular, would be
worse off without the Court—prisoners, pacifists, extramarital children. There would be
less freedom of speech and press, no oversight of judicial or administrative decisions. Even
politicians, who so often bristled at the Court’s interference, were grateful at heart for the
Court’s resolution of disputes too hot for the politicians themselves to handle. Kerscher
went on to praise the Court’s protection of opposition parties and dissident groups; its
policing of federalism; its oversight of party finance; its vindication of freedoms of speech,
assembly, demonstration, press, personality, and privacy. ‘Karlsruhe was the first’, Kerscher
concluded, ‘to bring fundamental rights from paper to life’.476 This was more than compen-
sation for occasional—or even frequent—judgments that one found politically or jurispru-
dentially disappointing.
It was also, for most Germans, more than compensation for the inherent tension between
constitutional justice and popular sovereignty. For fifty years the Court had played an
integrating, mediating role in West German society. It had enabled liberal and democratic
values and institutions to take root in the second German Republic. It fostered those val-
ues by articulating them, applying them, and requiring all state authority to honour them.
In the process, the Court assumed and exercised enormous power—sometimes aggres-
sively, sometimes deferentially, sometimes pragmatically, often persuasively, and usually
at a high level of judicial craftsmanship. The Court was often wrong; it often overreached;
but on the whole, it did its work well. If it constrained democracy in some respects, it rein-
forced democracy in others. In both senses, the Court redefined the nature, and reshaped

470 ibid. 471 ibid.
472  Ursula Knapp, ‘Der Faktor Karlsruhe’ Frankfurter Rundschau (28 September 2001) D2.
473 ibid. 474 ibid.
475  Helmut Kerscher, ‘Das Gericht der Republik’ Süddeutsche Zeitung (28 September 2001) 4.
476 ibid.
290 Karlsruhe Republic, 1990–2001

popular understanding, of German democracy. At the dawn of a new millennium, most

Germans would struggle, with Kerscher, to conceive of their national polity without the
Court that enforced their national constitution. Kerscher called Karlsruhe ‘the Court of
the Republic’. But the genitive worked both ways—a fact best captured by Gerhard Casper,
a German-American constitutionalist asked to give the keynote address at the Court’s
golden jubilee. Casper described not merely the Court but all of united Germany when he
­celebrated ‘the Karlsruhe Republic’.477

477  Gerhard Casper, ‘The “Karlsruhe Republic”—Keynote Address at the State Ceremony Celebrating the 50th

Anniversary of the Federal Constitutional Court’ (2001) 2 German Law Journal http://www.germanlawjournal.
com/index.php?pageID=11andartID=111>.
 Epilogue
The View from Europe

The European Court of Justice can never replace a national constitutional court.
What’s more, the Court has, God be thanked, found such a high degree of accept-
ance among the German public that a discussion that would place the Federal
Constitutional Court in question is, politically, wholly unrealistic.
—Chief Justice Hans-Jürgen Papier (2009)1

The loss in significance of the national constitution is not yet appreciated in full
measure in Germany. When that happens, it cannot leave constitutional patriotism
untouched. Constitutional patriotism will decline, without one’s being able to hope for
an equivalent at the international level.
—Former Justice Dieter Grimm (2009)2

In early September 2013, Andreas Voβkuhle travelled to Strasburg to address a gathering of

thirty or so members of the European Parliament (EP). The Court’s young president was to
speak on the theme of a ‘Europe of Tomorrow.’ But the meeting proved less amicable than
Voβkuhle’s hopeful title might have hinted. ‘It was not’, Der Spiegel reported, ‘a lovely even-
ing for Voβkuhle’.3 For two hours the assembled EMPs peppered the chief justice with hos-
tile questions and angry accusations. ‘Voβkuhle’, one participant recalled, ‘was positively
grilled’. The questioners charged the Constitutional Court with undermining the EP and
with misunderstanding—and misrepresenting—European democracy. The wrath of the
parliamentarians ran across party lines.4 Voβkuhle was provoked to deliver criticisms as
well as swallow them. He noted that no one present had mentioned ‘citizens’ or ‘voters’, and
wondered aloud whether his questioners worried only about their own power.5 It was not a
retort calculated to restore lost harmony.
Why were the Euro-folk so upset? In what did the Court’s offences lay? The EMPs’ anxiety
stemmed not only from what the Court had done recently but from what it might do soon. In
September 2012, the Court had refused to issue an injunction staying German approval of
the European Stability Mechanism (ESM); but the Court’s decision on the constitutional
merits of the issue was still pending. A decision against the ESM from the highest court of
the Euro zone’s largest economy would be, to put the matter lightly, profoundly disruptive.
The Court was also considering a challenge to the 3 per cent hurdle applicable to German
elections for the EP. Rumours suggested that the Court, which two years earlier had nixed a
5 per cent hurdle for EP elections,6 was considering the complaint quite seriously. Since
the Court had repeatedly approved a 5 per cent hurdle for elections to the German
Bundestag, a decision to quash a 3 per cent hurdle for European elections would send
an unmistakable message that European parliamentary democracy was inferior to its
German counterpart.

1  In ‘Wir erwarten Respekt’ Der Spiegel (19 December 2009) 40.

2  Dieter Grimm, ‘Identitӓt und Wandel—das Grundgesetz 1949 und heute’ (2009) 37 Leviathan 603, 616.
3  ‘Die Anmaβung’ Der Spiegel (10 March 2014) 20. 4 ibid. 5 ibid.
6  129 BVerfGE 300 (2011).
292 Epilogue: The View from Europe

But this, of course, was a message the Court had sent often, most recently in its qualified
approval of German accession to the Lisbon Treaty in June 2009.7 Throughout this book
we have seen how the successive stages of European integration have been subjected to
the Court’s review but have always, in the end, earned its cautious, qualified, admonitory
approval. This was the case, in varying degrees, with the ‘Solange’ judgments of 1974 and
1986. It was true also of the Maastricht judgment in 1993.8 The Court’s Lisbon judgment had
much in common with these earlier judgments, but it went beyond them in ways that make
the Lisbon decision and its progeny a useful lens through which to consider the Court at
the present time—its power, its prospects, and its predicament. This Epilogue makes three
basic points that link the Court’s ‘Euro’-jurisprudence of recent years (roughly from 2009
until the time of writing, March 2015) to the broader themes of this book. The basic points
are (1) that the Court has emerged in the recent European crises as a defender of German
democracy in the particularized form the Court itself helped foster; (2) that, ironically, a
Court credited with helping to establish Germany within the community of liberal democ-
racies might, in its European jurisprudence, be isolating Germany from a large portion of
that community; and (3) that the Court, which some argue has passed its ‘zenith’, might
be resisting an obvious external threat to its ongoing relevance when that relevance has
already been undermined from within.
Often in recent years observers around the globe have expressed astonishment that the
fate of Europe rests from time to time in the hands of a small band of German judges.
The possibility that the Court might derail the European train has raised, to many minds,
the spectre of judicial activism reaching an ultimate and appalling apotheosis. But it should
be stressed that judicial power reaches far more menacingly from the European Union to its
member states than it does in the other direction. The European Court of Justice (ECJ) is a
far more activist tribunal than any national constitutional court in Europe, including the
German Federal Constitutional Court. Against the activism of the ECJ, the governments
of Europe’s member states are almost utterly defenceless. National constitutional courts
represent the only available counterweight. This must be borne in mind if the relation-
ship between the German Constitutional Court and European integration is to be rightly
understood.9

I. The Lisbon Judgment

After referenda in France and the Netherlands killed the proposed European constitution
in 2005, the European Union’s member states sought to salvage many of the constitution’s
reforms by repackaging them as an amended treaty. The new treaty, drafted and signed in
Portugal in 2007, was set to enter into force in December 2009. Before then, it had to over-
come the opposition of Irish voters, who rejected the treaty in a 2008 plebiscite, but later,
after securing concessions, approved it in a second referendum held the following year. The
treaty also had to survive the scrutiny of the German Constitutional Court.
The challenge to the treaty in Karlsruhe was a prickly one, not least because, as crit-
ics pointed out more or less cynically, the Court itself would lose power if the treaty were
approved. It had long been observed—not least by current and former justices—that the

7  123 BVerfGE 267 (2009).

8  See 37 BVerfGE 271 (1974); 73 BVerfGE 339 (1986); 89 BVerfGE 155 (1993).
9  See, e.g., Dieter Grimm, ‘Die Rolle der nationalen Verfassungsgerichte in der europӓischen Demokratie’

in Claudio Franzius and others (eds), Grenzen der europӓischen Integration. Herausforderungen für Recht und
Politik (Nomos 2014) 27.
 The Lisbon Judgment 293

expansion of European jurisdictions constricted the Court’s own jurisdiction.10 If approved,

the Lisbon Treaty would extend Europe’s powers still further. It would increase the compe-
tences of the European Council, which would be chaired by a common president of the EU,
and of the EP, whose competences would reach many more policy arenas. It would enhance
the role of the European Commission and the ECJ. Europe would gain—or would secure
the power to pursue—a common foreign ministry and a common diplomatic corps, a com-
mon defence policy and a common penal code. And, for the first time, the EU would have a
common code of fundamental rights. In all these particulars, the EU would look more like
a traditional state than it ever had before.
Approval of the Lisbon Treaty in the German Parliament was overwhelming. The
Bundestag vote in April 2008 was 515 to 68; the Bundesrat vote a month later, 58 to 15.
Constitutional challenges—both to the law approving the treaty (Zustimmungsgesetz) and to
a companion law (Begleitgesetz) governing the powers of (Germany’s) Parliament—followed
immediately. The Second Senate heard oral argument for two days in February 2009 and
issued its elongated decision (143 printed pages) on 30 June.
After forty years of following a Court that makes menacing noises about Europe’s
democratic deficiencies but ultimately approves every advancing step of European inte-
gration, some observers concluded that the Court would never really stand in Europe’s
way.11 The Lisbon judgment would itself prompt cute comparisons between the Karlsruhe
Court and the Big Bad Wolf, and endless variations on the theme of the Court’s bark
exceeding its bite.12 Other wags quipped that the Court was, in European matters, like
Germany’s national soccer team:  they looked formidable, but always choked under
pressure.13
Joseph Weiler, who had fulminated so fiercely against the Maastricht judgment six-
teen years earlier, summarized the outcome with a mixture of resignation and fatigue—
something between a sigh and a yawn:
[I]‌n its internationally-related case law, the German Constitutional Court has a well-earned
reputation of the Dog that Barks but does not Bite. There would be, as the more jaded court
watchers among us confidently predicted, lengthy ‘humming and hawing;’ some high sound-
ing and biting criticism of certain democratic deficiencies of the Union and its Institutions;
heavy breathing about the German Court’s constitutional responsibilities and important
guardianship role. But in what we may now call the regular ‘Karlsruhe Miracle’, the pig would
finally be pronounced Kosher—as indeed turned out to be the case.14

Many immediate reactions to the judgment, however, were sharp and angry. These, as
Weiler noted, were often coloured by the political and ideological sensibilities of the persons
assessing the judgment.15 Those most friendly to the European project tended towards an

10 See, e.g., Stefan Oeter, ‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten,

Europӓischem Gerichtshof und Europӓischem Gerichtshof für Menschenrechte’ (2007) 66 Verӧffentlichungen

der Vereinigung der Deutschen Staatsrechtslehrer 362–91; Hans-Jürgen Papier, Das Rechtsprechungsdreieck
Karlsruhe—Luxemburg—Straβburg (Deutsche Hochschule für Verwaltungswissenschaften 2006).
11  See, e.g., Perry Anderson, ‘After the Event’ (2012) 73 New Left Review 49, 53 (‘It is unlikely that the oligarchy

of the EU will ever encounter much of a setback at Karlsruhe’.).

12 See, e.g., Kalypso Nicolaïdis, ‘Germany as Europe:  How the Constitutional Court Unwittingly

Embraced EU Demoi-cracy’ (2011) 9 I∙CON 786, 786 (‘Who is afraid of the German Constitutional Court?’);
‘Charlemagne: A Grim Tale of Judges and Politicians’ The Economist (4 November 2010) (‘The Karlsruhe court
has huffed about the democratic deficit of European bodies and puffed about vital sovereign powers that may not
be delegated to Brussels, but it has never stopped European integration’.).
13  The events of 2014 would refute both sides of this last analogy.
14  Joseph HH Weiler, ‘The “Lisbon Urteil” and the Fast Food Culture’ (2009) 20 Eur J Int’l Law 505, 505.
15 ibid.
294 Epilogue: The View from Europe

odd mixture of outrage and relief—relief that the Court allowed the treaty to move forward;
indignation at what the justices had to say along the way.
Critics angered by the Court’s rhetoric ignited lexical fireworks of their own. The judg-
ment, they said, was ‘overly long and … meandering’;16 ‘vast and verbose’;17 plagued by
‘myriad treatise-like passages’; bedevilled by the ‘devastating bankruptcy of [its] solipsistic
theory of the state’.18 The justices, said critics, had indulged in an essentially ‘performative
utterance in which the Court underline[d]‌its own importance in a strange combination
of rhetoric and verbosity’.19 The Court’s ‘interminable arguments’ reflected a lamentable
‘lack of seriousness’. They ‘betray[ed] an angry acrimony’ and an ‘uneasy posturing’.20 The
judgment suffered from an almost ‘miraculous proliferation of standards’ (wundersame
­Maβstabvervielfӓltigung).21 The justices had ‘overwhelmed constitutional law with state
theory’.22 They had stitched ‘a strange patchwork concept of statehood that owes nothing
to state theory and everything to political contingency’.23 The Court had hurled a ‘decla-
ration of War’ at the European Court of Justice;24 had proclaimed that ‘identity trumps
integration;’25 had shown signs of becoming, in European affairs, ‘a mere nuisance factor’,
‘an unpredictable troublemaker’, a resentful institution ‘too weak to shape European inte-
gration but strong enough to be an encumbrance’.26 The Court had become the overzealous
‘brakeman’ of the European train.27
All this in response to a judgment that unanimously approved Germany’s ratification of
the treaty.
The polemical blasts of the judgment’s detractors should not obscure the fact that
it had many scholarly defenders as well—some of whom noted that many Lisbon crit-
ics now had a good word to say about the Maastricht judgment they had execrated so
roundly sixteen years earlier. In one prominent review, two scholars praised the Court
for ‘taking popular sovereignty and democracy seriously’. 28 Others hailed the Court’s
vindication of electoral democracy as the classical source of legitimacy for the state and
of self-determination for the citizens. 29 Academic response to the judgment, then, was
a mixed bag, even if those who applauded the judgment were less vociferous than those
who were appalled by it.
But what did the justices actually say?

16  Christoph Schӧnberger, ‘Die Europӓische Union zwischen “Demokratiedefizit” und Bundesstaatsverbot’

(2009) 48 Der Staat 535, 535 (hereafter Schӧnberger, ‘Zwischen “Demokratiedefizit” und Bundesstaatsverbot’).
17  Christoph Schӧnberger, ‘Lisbon in Karlsruhe: Maastricht’s Epigones at Sea’ (2009) 10 German LJ 1201, 1201

(hereafter Schӧnberger, ‘Maastricht’s Epigones’).

18  Daniel Halberstam and Christoph Mӧllers, ‘The German Constitutional Court says “Ja zu Deutschland!”’

(2009) 10 German LJ 1241, 1250, 1251.

19 ibid 1257. 20 Schӧnberger, ‘Maastricht’s Epigones’ (n 17) 1202, 1207.
21  Matthias Jestaedt, ‘Warum in die Ferne schweifen, wenn der Maβstab liegt so nah? Verfassungshandwerkliche

Anfragen an das Lissabon-Urteil des BVerfG’ (2009) 48 Der Staat 497, 502.

22 ibid. 23 Schӧnberger, ‘Maastricht’s Epigones’ (n 17) 1209.
24  ‘Wut und Trӓnen’ Der Spiegel (6 July 2009) 29.
25  ibid; see also Jo Eric Khushal Murkens, ‘Identity Trumps Integration: The Lisbon Treaty in the German

Federal Constitutional Court’ (2009) 48 Der Staat 517.

26 Schӧnberger, ‘Maastricht’s Epigones’ (n 17) 1216.
27 See Thomas Oppermann, ‘Den Musterknaben ins Bremserhӓuschen! Bundesverfassungsgericht und

Lissabon-Vertrag’ (2009) 20 Europӓische Zeitschrift für Wirtschaftsrecht 473; see also Schӧnberger, ‘Maastricht’s
Epigones’ (n 17) 1217; Alfred Grosser, ‘The Federal Constitutional Court’s Lisbon Case: Germany’s “Sonderweg”—
An Outsider’s Perspective’ (2009) 10 German LJ 1263, 1266.
28  See, e.g., Klaus Ferdinand Gӓrditz and Christian Hillgruber, ‘Volkssouverӓnitӓt und Demokratie ernst

genommen—Zum Lissabon-Urteil des BVerfG’ (2009) 64 JuristenZeitung 872.

29  See Frank Schorkopf, ‘Die Europӓische Union im Lot—Karlsruhes Rechtsspruch zum Vertrag von Lissabon’

(2009) 20 Europӓische Zeitschrift für Wirtschaftsrecht 718.

 The Lisbon Judgment 295

Much that was familiar from earlier decisions (particularly the Maastricht judgment),
though at much greater length. On the positive side, the Court emphasized again that the
Basic Law was not merely ‘open’ to European integration; it affirmatively commanded the
Federal Republic to pursue integration.30 The justices went so far as to enshrine ‘friendli-
ness toward Europe’ (Europafreundlichkeit) as a constitutional principle.31 On the negative
side, the Senate reaffirmed that there were limits to how much integration the Basic Law
could tolerate.32 The justices reiterated that the EU was a secondary legal order: it derived
its powers (and legitimacy) from the member states. The member states remained ‘Masters
of the Treaties’. Transfers of power to the European level must be explicitly limited and, in
theory, reversible.33 In constituting and empowering the EU, member states had not sur-
rendered their sovereignty; they had only delegated specific, sovereign powers to European
organs. European organs wielded no authority to define the scope of their authority—no
Kompetenz-Kompetenz.34 The Constitutional Court itself would exercise ultra vires review
if European agents exceeded their mandate.35 Individual German citizens could solicit such
review by invoking their right, under Article 38 GG, to vote in Bundestag elections.36 The
Court reemphasized that this was a substantive right—the right to cast a meaningful vote
for a representative body that retained meaningful powers.
So much was mere reaffirmation of Maastricht, though it dismayed those who hoped
Maastricht would be overruled. But the Senate went further. In some respects, the expan-
sion of Maastricht was a matter of emphasis and tone; in other regards, the innovations were
substantive. Most striking of all was the Senate’s discussion of sovereignty, which culmi-
nated in a ringing answer to the colossal question that Maastricht had left open: whether
the European Union could, consistent with the Basic Law, evolve into a federal state
(Bundesstaat).
The Second Senate said no. Not only, the justices reasoned, did the Basic Law require that
the German Parliament retain meaningful powers; it demanded that the German Republic
remain a sovereign state.37 The constitution not only presupposed German sovereignty; it
guaranteed it.38 This guarantee, moreover, was rooted, not in any ordinary provision of the
constitution, but in the ‘eternity clause’ of Article 79(3) and in the ‘self-termination’ clause
of Article 146.39
Often in these pages we have encountered Article 79(3)’s ban on constitutional amend-
ments that would undermine Article 1’s consecration of human dignity or Article 20’s
vow that the Federal Republic would remain forever ‘a democratic and social federal state’.
As emphasized in the last chapter, Article 146 declared that the Basic Law would cease to
apply when a new constitution, adopted by free choice of the entire German people, entered
into force. In its Lisbon judgment, the Second Senate maintained that the eternity clause
enshrined in perpetuity the ‘identity’ of the Federal Republic as a sovereign state.40 This
identity was further buttressed by Article 146, which the Court now construed as an affirm-
ative right—one that required the Federal Republic to retain sufficient sovereignty to allow
the German people to adopt (someday) a new national constitution.41
The doctrinal innovation—draped in a broad excursus on state theory—was astonishing.
Its upshot was that not only did the Basic Law limit European integration, but such limits
could not be removed by constitutional amendment. There could be no European federal
state while the Basic Law remained in force. A new Germany must precede a federal Europe.
Nothing short of a new constitution would suffice. The barriers to European statehood

30 123 BVerfGE 267 (n 7) 344–45. 31 ibid 347. 32 ibid 357. 33  ibid 348–50.

34 ibid 349. 35  ibid 353–54. 36  ibid 340–43. 37  ibid 343, 345. 38 ibid 343.
39 ibid 344. 40 ibid 344. 41  ibid 349–50.
296 Epilogue: The View from Europe

could be overcome, one critic summarized, ‘only through revolution’.42 Constitutional sover-
eignty, the Senate ruled, lay at the core of the Federal Republic’s ‘identity’.43 That identity was
the Basic Law’s premise and purpose—its alpha and omega, its essential precondition and its
unamendable guarantee. The Maastricht judgment observed that the European Union hadn’t
yet become a federal state; the Lisbon judgment ruled that it never could.
In the view of many critics, this holding put the project of European integration in a ‘double
bind’.44 On the one hand, the Court chided the European Union for its democratic deficien-
cies.45 On the other hand, the judgment precluded the only possible remedy for those deficien-
cies. Democratic legitimacy, the justices maintained, existed only within the context of the
state.46 A democratic state was one that rested on the foundation of popular self-government
through parliamentary representation. Europe was not such a state, and the Basic Law barred
its ever becoming one. The EU was thus relegated to a ‘state-theoretical no-man’s-land;’ cast
adrift between the Scylla of democratic deficiency and the Charybdis of forbidden statehood;
left to choose ‘between cholera and the plague’.47 One critic discerned in the decision an
‘aggressive-truculent tone’—a defiant cry of “Thus far, and no further!”’48 Others wondered
gloomily whether ‘the end of European integration’ had finally come.49 The date of the Lisbon
judgment, predicted Alfred Grosser, a French–German political scientist, ‘will be remem-
bered as a black day in the history of Europe’.50
Part of the judgment’s blackness, Grosser continued, was that so many Germans seemed
so happy about it—so happy, indeed, that ‘those living in Germany and promoting and sup-
porting German–French cooperation for over 60  years [i.e. Grosser himself] must now
answer critics that worry that the Germans have never been serious about Europe’.51 This,
perhaps, was the exaggeration of bitter disappointment. But it was certainly true that, within
Germany, the judgment found many supporters, in both scholarly and popular venues.52
One of the case’s CSU complainants was hailed by his party fellows for having ‘saved our
honor’.53 In the immediate aftermath of the judgment, some praised the Court for its vigorous
defence of democratic legitimacy and chided the German Parliament for its docile surrender
of sovereign powers.54 More moderate voices called for caution among critics, noting that the
judgment could mean ‘the end of integration’ only if one’s hopes for integration were defined
by the prospect of European statehood.55
But critics were in no cautious mood. For them the judgment was too much to swallow.
It was like Dr Johnson’s mutton—‘as bad as bad can be’—‘ill-fed, ill-killed, ill-kept, and
ill-drest’.56 It was also riddled with ironies.
42  Jestaedt (n 21) 505. 43  123 BVerfGE 267 (n 7) 340, 343–44, 347, 350.
44  Halberstam and Mӧllers (n 18) 1251. 45  123 BVerfGE 267 (n 7) 376–77. 46  ibid 340–43.
47 Schӧnberger, ‘Zwischen “Demokratiedefizit” und Bundestaatsverbot’ (n 16) 542; Jestaedt (n 21) 515.
48 Schӧnberger, ‘Zwischen “Demokratiedefizit” und Bundestaatsverbot’ (n 16) 539, 536.
49  Eckhard Pache, ‘Das Ende der europӓischen Integration? Das Urteil des BVerfG zum Vertrag von Lissabon,

zur Zukunft Europas und der Demokratie’ (2009) 37 Europӓische Grundrechte Zeitschrift 285.
50  Grosser (n 27) 1263. 51  ibid 1263, 1266.
52  See Jӧrg-Klaus Baumgart, ‘Ja zum Vertrag von Lissabon, aber … Das Urteil des BVerfG und die not-

wendige Änderungen des Ausweitungsgesetzes’ (2009) 63 NJW 309; Nicola Beer, ‘Das Lissabon-Urteil
und die Hausaufgaben für Berlin’ (2009) 20 EuZW 593; Klaus Ferdinand Gӓrditz and Christian Hillgruber,
‘Volkssouverӓnitӓt und Demokratie ernst genommen—Zum Lissabon-Urteil des BVerfG’ [2009] JuristenZeitung
872; Christian Hillgruber, ‘Die besseren Europӓer’ FAZ (10 September 2009)  8; Peter M.  Huber, ‘Wer das
Sagen hat’ FAZ (10 September 2009) 8; Paul Kirchhof, ‘Faszination Europa’ FAZ (19 September 2009) 8; Frank
Schorkopf, ‘The European Union as an Association of Sovereign States’ 10 German LJ 1219 (2009).
53  In ‘Wut und Trӓnen’ Der Spiegel (6 July 2009) 28. It was unclear whether ‘the honor’ was that of Germany

or the CSU.
54  See Heribert Prantl, ‘Verfassungsgericht zu Lissabon-Vertrag—Europӓische Sternstunde’ Süddeutsche

Zeitung (1 July 2009).
55  See Dieter Grimm, ‘Das Grundgesetz als Riegel vor einer Verstaatlichung der Europӓischen Union’ (2009)

48 Der Staat 475, 495.

56  See James Boswell, Boswell’s Life of Johnson (Charles Grosvenor Osgood ed, New York, 1917) 518.
 The Lisbon Judgment 297

It was ironic that in an immensely long judgment the Court devoted scores of pages to
approving the Lisbon Treaty but only a few to invalidating a parliamentary statute—passed
the same day the treaty was approved—on the rights of the Bundesrat and the Bundestag.
Parliament must play a greater role, the Court held, in the transfer of competences
to Europe than was provided for in the statute.57 This the Second Senate held tersely,
summarily—almost, it seemed, in passing.58 By contrast, the Senate spent more than 100
pages saying the Lisbon Treaty was okay. It was ironic, moreover, that in its discussion
of Europe’s democratic deficiencies the Court linked democracy and parliamentarism—‘a
pattern belonging to the worst traditions of German constitutional theory’59—belonging,
that is, to Carl Schmitt.60 It was ironic that even in this sense the Court’s theory of demo-
cratic legitimacy could not account for the legitimacy of the Swiss Stӓnderat or the United
States Senate, or even ‘for the democratic legitimacy of the German national institutions’.61
The justices seemed blind ‘to the particularities of democratic legitimacy in federal states’.62
It was ironic that although the justices exalted the importance of parliaments they ‘only
casually note[d]‌the important strengthening of … the European Parliament by the Treaty
of Lisbon’.63
It was ironic that the justices, with their radical construction of Article 79 and Article
146, had failed meaningfully to grapple with the one obviously relevant constitutional
provision—Article 23 GG, which regulated the transfer of powers to European institutions.64
It was ironic that the Court affirmatively banned a European Bundesstaat at a time when
hardly anyone was seriously calling for one.65 It was ironic that in a country in which
Euro-skeptic political parties languished in sovereign irrelevance (something, alas, not true
as of this writing), the highest court had ‘come to embody the Euro-skeptic position’.66 It was
ironic that the Court asserted German sovereignty and identity against the very Europe to
whose early phases of integration Germany owed its sovereignty and to whose later phases of
integration Germany owed its unity.67 It was ironic that Article 79, first framed as an ultimate
barrier against the ‘arch-enemies’ of peace and democracy, was now being urged against the
EU, a bulwark of peace and liberalism in a continent long rent by illiberalism and war.68 And
it was ironic (if not paradoxical) that the Court found the EU to be democratically deficient
but consistent with the democracy principle.69
Some of the greatest ironies were institutional. The judgment was a prolonged paean to
majoritarian popular sovereignty and yet, as two critics wrote, Germany’s own federal sys-
tem was often discussed as a ‘prime example of a non-majoritarian political system’.70 And
the most potent counter-majoritarian force in the German polity was, of course, the Federal
Constitutional Court. In its Lisbon judgment, the Court condemned constraints on the very
Parliament it had itself been constraining for nearly sixty years. It was perhaps with this
in mind that another critic sniffed, ‘Future transfers of powers to the European Union

57  123 BVerfGE 267 (n 7) 391–92. 58  See Jestaedt (n 21) 500.

59  Halberstam and Mӧllers (n 18) 1247.
60 See Carl Schmitt, Die geistesgeschichtliche Zustand des heutigen Parlamentarismus (Duncker and

Humblot 1923).
61 Schӧnberger, ‘Maastricht’s Epigones’ (n 17) 1211, 1215. 62 ibid 1215. 63 ibid 1213.
64  Halberstam and Mӧllers (n 18) 1254; also Jestaedt (n 21) 507.
65 Schӧnberger, ‘Zwischen “Demokratiedefizit” und Bundesstaatverbot’ (n 16) 555.
66  See Schӧnberger, ‘Maastricht’s Epigones’ (n 17) 1217. 67  Grosser (n 27) 1266.
68  See Jestaedt (n 21) 507; see also Halberstam and Mӧllers (n 18) 1255 (‘It is … highly dubious that Basic

Law Article 79(3) was meant to preserve the sovereignty of the German state within the process of European
integration’.).
69  123 BVerfGE 267 (n 7) 377; see Jestaedt (n 21) 510. 70  Halberstam and Mӧllers (n 18) 1248.
298 Epilogue: The View from Europe

should … be left to the parliamentary majorities the Court itself cannot praise enough as
the main expression of democratic legitimacy’.71
This was a deep irony, but there was another, deeper irony—an irony historical as well
as ­institutional. The title of Alfred Grosser’s commentary skewered the Lisbon judgment as
emblematic of ‘Germany’s “Sonderweg”.’ In using this loaded term, Grosser implied that
Germany was once again going its own way—that it might not be, as quoted earlier, ‘seri-
ous about Europe’. That the Court whose greatest historical achievement was to correct the
course of Germany’s Sonderweg—to plant the Federal Republic firmly in the Western tradi-
tion of liberal democratic politics and robust protection of fundamental rights—should be
the agent of a new special path was an irony more acute than all the rest. Beneath the surface,
however, there might have been no irony at all—a point which will be revisited in this book’s
closing comments.

II.  The Watchdog Begins to Growl

Months passed and the tempest stilled. Tensions, however, persisted. In December 2009,
Der Spiegel reported that the ‘relationship between Berlin and Karlsruhe is fraught as it
hasn’t been for a long time’.72 A string of subsequent decisions on European integration—all
issued against the backdrop of an ongoing Euro crisis—sometimes relaxed and sometimes
intensified the strain.
In the Lisbon judgment the Court renewed its vow to exercise ultra vires review over
European actions—review, that is, of whether European actors exceeded their competences.
On 6 July 2010 the Second Senate did so for the first time since Lisbon.73 It did so with great
restraint. In a comparatively brief judgment—the analysis of the seven-justice majority took
fewer than twenty pages—the Second Senate deferred conspicuously to a prior judgment of
the European Court of Justice, observing that the Senate’s own ultra vires review was lim-
ited to cases of ‘obvious overstepping of competence’.74 This language was familiar from the
Lisbon judgment,75 but in what came to be called the Mangoldt decision, the Senate adduced
that language in a context of  ‘unmistakably pronounced Europe-friendly diction’.76 Another
year passed, and on 7 September 2011, the eve of the Court’s sixtieth anniversary, the Second
Senate approved the EU’s first Greek rescue package as well as a temporally limited Eurozone
bailout fund.77 In the same decision, however, the justices strengthened once more the par-
ticipatory rights of the Bundestag in further European developments.
Two months later, on 9 November 2011, the Court grew more aggressive. The Second
Senate struck down the 5 per cent electoral hurdle as it applied in German elections to the
EP.78 The hurdle, the Court held, was a severe intrusion on the principles of electoral equal-
ity and equal opportunity for political parties. Under existing legal and political circum-
stances, it was an unjustifiable intrusion. It was an eye-catching decision, not least because,
as noted earlier, the Court had repeatedly approved a 5 per cent hurdle for elections to the
German Bundestag.79 The German Parliament duly replaced the 5 per cent hurdle with a
3 per cent hurdle. But on 26 February 2014, the Court quashed the 3 per cent hurdle as well.80

71 Schӧnberger, ‘Maastricht’s Epigones; (n 17) 1210.

72  ‘Wir erwarten Respekt’ Der Spiegel (19 December 2009) 38. 73  126 BVerfGE 286 (2010).
74 ibid 302. 75  123 BVergGE 267 (n 7) 353.
76 Matthias Cornils, ‘BVerfGE 123, 267—Lissabon’ in Jӧrg Menzel and Ralf Müller-Terpitz (eds),

Verfassungsrechtsprechung, 2nd edn (Mohr Siebeck 2011) 883.

77  129 BVerfGE 124 (2011). 78  129 BVerfGE 300 (2011). 79  See 51 BVerfGE 222 (1979).
80  135 BVerfGE 259 (2014).
 The Watchdog Begins to Growl 299

The latter decision stirred a sensation. It prompted rejoicing among Germany’s proliferating
pigmy parties, nineteen of which had joined the constitutional complaint. Unorthodox parties
such as the Pirates, the Ecological Democratic Party (ÖDP), and the Left Party were all pleased.
Parties of the far-Right were jubilant. In an official missive, the qualifiedly Euro-skeptic
Alternative for Germany (AfD) called the judgment a ‘good sign for democracy’, rejoicing that
‘for the first time voters in Germany have the chance to vote for the party of their choice without
having to fear that their vote might go wasted’.81
The elation of Right-wingers gave many observers pause.82 One common fear was that the
judgment would exacerbate the phenomenon of voters venting steam by plumping for extrem-
ists in EP elections. Some, including Hans-Jürgen Papier, the former chief justice, worried that
the Court’s decision imperilled the 5 per cent hurdle for national elections.83 Papier called the
judgment ‘right neither in its result nor in its reasoning’.84 In an interview with Die Welt, Papier
called for a constitutional amendment securing the national 5 per cent rule.85 Other observers
resented the ‘Karlsruhe arrogance’ reflected in the judgment’s obvious premise that German
democracy and European democracy were beings of different orders.86
Responses to the election decision were especially fraught because, as everyone knew, the
Court was at the same time preparing to decide the merits of a much more important case.
On 26 July 2012, Mario Draghi, the Italian president of the European Central Bank (ECB),
vowed that his bank was ‘ready to do whatever it takes to preserve the Euro’.87 The most
dramatic steps then taken were the creation of the European Stability Mechanism (ESM),
a permanent firewall empowered to deliver instant assets to embattled Eurozone mem-
bers, and the ECB’s September 2012 pledge to make, if necessary, unlimited purchases of
government bonds from fiscally besieged states—a scheme christened ‘Outright Monetary
Transactions’ (OMT). German involvement in both programmes provoked immediate
constitutional challenges. In the early months of 2014, the Court delivered landmark deci-
sions on both matters—one shortly before the Three-Percent Hurdle decision, the other
shortly thereafter.
The ESM case drew the most headlines. In September 2012, with the Court about to
decide whether preliminarily to enjoin German involvement in the ESM, Der Spiegel
reported what was at stake: ‘If the justices give the guarantee system their imprimatur, even
if they establish strict conditions, it could mean the beginning of the end of the Federal
Republic as a self-determining state’.88 Focus on the Court and its imminent decision was
global.89 A reporter for the Financial Times wrote that in its coming decision the Court
might ‘be sealing the fate of the Euro’.90 Financial analysts fretted that a negative vote from
Karlsruhe would herald ‘the end of the EU as we know it’.91
When the Court denied the petition for a preliminary injunction on 12 September 2012,
Europhiles breathed a collective sigh of relief. Investors relaxed and markets rallied.92

In ‘Drei-Prozent-Hürde bei Europawahl verfassungswidrig’ Die Welt (26 February 2014).

81 

See ‘Schwarz-Rot warnt vor Einfluss rechter Splitterparteien’ Spiegel Online (26 February 2014).
82 
83  ‘Ex-Verfassungsrichter sieht Fünfprozenthürde in Gefahr’ Spiegel Online (8 March 2014).
84 ibid. 85  Jochen Gaugele, ‘Das Urteil leuchtet mir nicht ein’ Die Welt (10 March 2014) 4.
86  See Gregor Peter Schmitz, ‘Karlsruher Arroganz’ Spiegel Online (26 February 2014).
87  See ‘Key Excerpts: Mario Draghi Says ECB “Ready to Do Whatever It Takes”’ Wall Street Journal Online

(26 July 2012)  <http://blogs.wsj.com/economics/2012/07/26/key-excerpts-mario-draghi-says-ecb-ready-to-

do-whatever-it-takes/> (accessed 10 April 2014). That the promise was prefaced by the qualifier ‘Within our
mandate’ was swiftly forgotten.
88  Dietmar Hipp, ‘Der Kapitӓn’ Der Spiegel (10 September 2012).
89  See ‘Draghi’s Plan’ The Economist (11 August 2012) 66.
90  Quentin Peel, ‘Germany’s Judgement Day’ Financial Times (7 August 2012).
91  ‘Angela Merkel Just Revealed the Real Situation in Europe’ Phil’s Stock World (27 August 2012).
92  See Alice Ross, ‘German ESM Ruling pushes Euro above $1.29’ Financial Times (12 September 2012).
300 Epilogue: The View from Europe

Many pegged the decision as historic. A reporter in the World Politics Review predicted
that ‘should a continent-spanning republic ever emerge in Europe, historians will probably
point to Sept. 12, 2012, as one of the game-changing days in the historic march toward such
a goal’.93 The Court’s decision wasn’t the only big Euro news that day; but it topped that
reporter’s list. Other Europe watchers, however, remained wary. After all, the Court had not
ruled positively that the bailout fund was constitutional; it had only concluded that the por-
tended harm was not so imminent as to require an immediate injunction. Not until March
2014 would the Second Senate assess the constitutional question on its merits.
By that time, the Court had already struck down the 3 per cent hurdle for Germany’s EP
elections. In an even more momentous judgment, it had ruled that the OMT programme
was illegal.
In a judgment dated 7 February 2014 the Second Senate held, by a vote of 6:2, that the
ECB’s bond-buying programme exceeded the Bank’s competences and therefore violated
European law.94 But the justices did not stop there. They took the unprecedented step of
referring the matter—a question of European rather than German law—to the European
Court of Justice. This was a relief to many Europhiles, who thought it unlikely that the ECJ
would quash OMT in its entirety.95 But others remained rattled. The Constitutional Court
had not sent the case to Luxembourg for a final decision but for a second opinion. The last
word, it seemed, remained in Karlsruhe. The Court, one critic maintained, was ‘playing
with fire’. The judgment not only damaged the ECB; it posed a risk for all of Europe.96
Euro-skeptics, meanwhile, did considerable crowing. Peter Gauweiler, the German MP
who brought the case, exulted that ‘Karlsruhe has shown ECB President Mario Draghi what
a bazooka really is’.97 The AfD boss, Bernd Lucke, rejoiced that ‘a court has finally found
that the ECB’s bond-buying program is a clear violation of European law’.98 Whether that
finding was final and what its ultimate consequences would be remained unclear. But many
observers were convinced that the Court had crossed a threshold. The Court had finally
found an ultra vires violation of European law. After forty years of barking, the dog had
finally bitten.99
Many feared that it would soon bite again—and hard. The Court announced it would
release its final judgment in the ESM case in the middle of March 2014. For some leading
politicians, frustration with recent decisions fuelled fears of what the coming decision might
contain. Days before the Second Senate announced its ESM judgment, Volker Kauder, the
long-time head of the CDU/CSU Bundestag faction, told Die Welt am Sonntag, ‘I question
with alarm whether the Federal Constitutional Court still places sufficient value on the
principle of judicial self-restraint’.100 The Bundestag was the constitutional organ imme-
diately elected by the German people, Kauder noted. The Court must exercise greater care
in preserving Parliament’s political leeway. The European Parliament, he added, was ‘no
longer a second-class Parliament’.101 Tensions mounted as the judgment day approached.

93  Ulrike Guérot, ‘The EU Gets Serious About Saving the Euro’ World Politics Review (17 September 2012) 1.
94  134 BVerfGE 357 (2014).
95  In fact, the ECJ’s advocate general suggested in January 2015 that OMT was compatible with the EU trea-

ties. Court of Justice of the European Union, Press Release No 2/15, 14 January 2015, <http://curia.europa.eu/
jcms/upload/docs/application/pdf/2015-01/cp150002en.pdf>.
96  Marcel Fratzscher, ‘Ein Richterspruch mit Risiko’ Zeit Online (7 February 2014).
97 In ‘Europe or Democracy?’ Spiegel Online—International (10 February 2014) http://www.spiegel.de/

international/europe/german-court-calls-ecb-bond-buying-into-question-a-952556.html.
98 In ibid.
99  See Niels Petersen, ‘Karlsruhe Not Only Barks, But Finally Bites—Some Remarks on the OMT Decision of

the German Constitutional Court’ (2014) 15 German LJ 321.

100  ‘Volker Kauder greift hӧchste Richter an’ Die Welt am Sonntag (16 March 2014). 101 ibid.
 Final Reflections 301

Many believed that a negative ruling would mean the end of the Euro. ‘This time’, Der
Spiegel reported, ‘everything is at stake’.102
But the judgment, when it came, was anti-climactic. The Second Senate’s verdict on the
ESM was a ‘yes, without buts’.103 The Court approved the rescue fund without qualification.
As usual, the justices recited a long list of principles requiring a core minimum of national
parliamentary participation.104 But they ruled that those requirements had been adequately
fulfilled. ‘The result’, said Chief Justice Voβkuhle, ‘is unambiguous’.105 The Karlsruhe
watchdog had not followed its OMT nip with an ESM chomp. It had not bitten a second
time; it had barely barked.
Reactions to the decision were predictable—rejoicing on the one hand that the Court
had rediscovered the virtues of restraint,106 suspicion on the other hand of a judgment that
garnered universal praise from the politicians of major parties.107 If there were a third hand,
it belonged to the Euro-skeptics, whose dismay was unalloyed.

III.  Final Reflections

Having surveyed the broad sweep of the Court’s history in the foregoing pages we can now
view the recent celebrity of the Court’s European jurisprudence with some historical per-
spective. Fears that the Court would obliterate the Euro have proved exaggerated, though
Europhiles caution that they are not out of the woods yet. Predictions that Europe would
render Karlsuhe irrelevant have proved exaggerated as well. The Court’s Golden Age is per-
haps over and gone. Golden Ages usually are. But Karlsruhe still matters, not only in its
obvious willingness to play an ongoing role in European integration, but also in its more
traditional capacities as well—as attested, for example, by a recent decision limiting the
influence of political parties on the content of public television.108
Perhaps it matters too much. In April 2014, Thomas de Mazière, Germany’s federal inte-
rior minister, met with a group of public law scholars in Berlin to discuss the Court’s role
and to vet possible reforms, such as limiting the justices’ terms, reintroducing the pos-
sibility of additional terms, or requiring a two-thirds Senate majority to invalidate acts of
Parliament.109 De Mazière is not the only member of the cabinet concerned about the Court.
Wolfgang Schӓuble, the federal finance minister, criticized the Court’s Three-Percent Hurdle
decision for its profound misunderstanding of the European Parliament and observed else-
where, with a truculent eye toward Karlsuhe, that ‘Whoever wishes to shape statutes should
take pains to become a member of the German Bundestag’.110
At the time of writing, German newspapers are quick to observe ‘mounting alienation
between Berlin and Karlsruhe’,111 observing that the Court is now ‘criticized sharply as
seldom before’.112 But no one better than readers of this book should know how exaggerated

102 Melanie Amann, Thomas Darnstӓdt, and Dietmar Hipp, ‘Der Druck-Knopf’ Der Spiegel (10 June 2013) 21.
103 ‘Karlsruhe sagt ja ohne Aber’ Spiegel Online (18 March 2014) <http://www.spiegel.de/wirtschaft/soziales/
euro-krise-karlsruhe-sagt-ja-zu-rettungsschirmen-und-fiskalpakt-a-959426.html>.
104  See 135 BVerfGE 317 (2014).
105  ‘Karlsruhe sagt ja ohne Aber’ Spiegel Online (18 March 2014) <http://www.spiegel.de/wirtschaft/soziales/

euro-krise-karlsruhe-sagt-ja-zu-rettungsschirmen-und-fiskalpakt-a-959426.html>.
106  See Ludwig Greven, ‘Das Verfassungsgericht nimmt sich zurück’ Zeit Online (18 March 2014).
107  See Joachim Jahn, ‘Scheinheiliges Lob für die Verfassungsrichter’ FAZ (18 March 2014).
108  See Judgment of 25 March 2014, 1 BvF 1/11, <http://www.bundesverfassungsgericht.de/entscheidungen/

fs20140325_1bvf000111.html>.
109  Reinhard Müller, ‘Berliner Gedankenspiele zur dritten Gewalt’ FAZ (3 April 2014). 110 In ibid.
111 ibid. 112  ‘Die Anmaβung’ Der Spiegel (10 March 2014) 20.
302 Epilogue: The View from Europe

such claims are. Current criticisms fall comfortably into a very long pattern.113 As one
observer noted, in comparison to the high-level criticisms flung at the Court in the 1950s,
1970s, and 1990s, current critiques are ‘almost too decent’.114 The present controversy is no
crisis; and even crises come and go.
The Court’s present-day defenders often emphasize that the number of laws the Court
quashes has always been very modest compared to the thousands of complaints it fields
each year.115 Critics counter that the real restraint emanating from Karlsruhe is not the
occasional invalidation of laws already passed but the proliferation of standards and prin-
ciples that limit future legislation.116 Both have a point, but the point of the critics requires
some context.
The Court cites itself much more often than it cites the constitution, and these self-citations
not only give an impression of timelessness (because they are undated), they accumulate
over time. The Court’s recitations of governing standards have grown longer—a phenom-
enon on striking display in the Lisbon judgment. These are not mere dicta. As one observer
has written, ‘the self-referentiality of standards [Maβstӓbe] has led to the development of
much higher rationality demands on the democratic legislature, which the Court increas-
ingly treats like an agency [Behӧrde], not like a directly democratically legitimated organ’.117
Another scholar laments that ‘time and again in recent years the Court has adduced a gen-
eral rationality requirement as a standard for the review of legislative behavior’.118 In a series
of more or less high profile cases, the Court has expanded its general equality jurisprudence
to review legislation for consistency, congruity, and coherence.119 But legislation is often
inconsistent for a noble reason: it is the product of compromise. Ban legislative incoher-
ence and you risk rendering parliamentary compromise impossible.120 What’s more, par-
liamentary decisions are supposed to reflect the wishes of the citizenry, and those wishes
are themselves often inconsistent. Strip parliaments of the right to act irrationally, and you
kill democracy.
At first blush, there is a deep irony here. The proliferation of standards drawn from the
Court’s own jurisprudence has, in an important sense, made the Court’s scrutiny more
exacting over time. But over time the Federal Republic has matured into a full-grown lib-
eral democracy, committed to European unity and sensitive to social justice. In a poten-
tially troubling sense, the Republic’s Guardians have seemed to do more as the country has
needed them less. The Court’s role, so desperately crucial in the Federal Republic’s early
years, became less crucial as the Republic matured. At the same time, that role expanded;
and there, perhaps, lies the rub.
But a couple qualifications are in order. The first is that the much-lamented ‘proliferation
of standards’ and unwieldy ‘chains of citations’ restrain the Court as well as Parliament.

113  For a current brief effort to assess recent calls for reform and to situate them in a longer historical context,

see Ute Sacksofyk, ‘Wellen der Empӧrung—Das Bundesverfassungsgericht und die Politik’ (2014) 68 Merkur
711. Sacksofyk notes charmingly that the Court has had a crisis ‘every twenty years’, beginning with the ‘hits of
the 1950s’. ibid 711.
114  ibid 711–12.
115  See Sascha Kneip, Verfassungsgerichte als demokratische Akteure (Nomos 2009) 284–347.
116  See Christoph Mӧllers, ‘Legalitӓt, Legitimitӓt und Legitimation des BVerfG’ in Matthias Jestaedt and

others, Das Entgrenzte Gericht. Eine Kritische Bilanz nach Sechzig Jahre Bundesverfassungsgericht (Suhrkamp
2011) 408.
117 ibid 407.
118  Philipp Dann, ‘Verfassungsgerichtliche Kontrolle Gesetzgeberischer Rationalitӓt’ (2010) 49 Der Staat

630, 630.
119  ibid. The three principal examples Dann cites are 125 BVerfGE 175 (2010); 122 BVerfGE 210 (2008); 121

BVerfGE 317 (2008).

120  Dann (n 119) 640.
 Final Reflections 303

The Court’s fealty to principle and precedent (over the last six decades it has reversed itself
far less frequently, for instance, than has the United States Supreme Court) ensures and
announces that its judgments are the product of an established and enduring jurisprudence,
rather than of the impulses of the moment or the current alignment of the Court’s person-
nel. The second is that Parliament is often freer than it thinks. Many putative constitutional
restraints on Parliament (and on administrative officials) are actually self-imposed, the
product of an overdeveloped eagerness to punt hard questions to the Court or to pretend
that the Court has already answered them.121 The Court’s proclivity for self-citation, then,
does more to constrain the justices, and less to constrain politicians and civil servants, than
many critics suggest.
One should also be careful before concluding either that the Court has outlived its use-
fulness, or that its usefulness has diminished as its powers have grown. It is true that the
Court is less necessary now as a defender of individual rights against the state than it was in
the infant years of the Federal Republic. German politicians have largely internalized the
Basic Law’s individual rights regime—a happy circumstances that owes more than a little
to the historical efforts of the Federal Constitutional Court. But the Court has responded to
this development and its role has shifted accordingly. The Court’s major contribution has
shifted from the defence of individual rights against state intrusion to the orientation of an
increasingly professionalized—and therefore often short-sighted—political class toward
long-term constitutional commitments and enduring fundamental values.122 The justices
are no longer the guardians of an immature state enduring the growing pains of democ-
ratization and liberalization. They have become rather the guardians of deeply-rooted
principles and an enduring tradition. In an important sense, this has cast the Court in a
conservative rather than a progressive posture. But the Court conserves, or at least requires
other state actors to consider, many prized progressive values.
This is cold comfort, perhaps, to observers wary of judicial power, which the Court
plainly continues to wield. The Court’s powers have been hemmed to some extent by the
expansion of European jurisdictions, but domestically they remain formidable. And the
Court, despite its recent unqualified endorsement of the ESM, shows no signs of quitting
the European field.
This brings us back to the deep irony, mentioned earlier, to which I promised to return.
The Court and its jurisprudence still present an obstacle to the advance of European inte-
gration. The OMT endgame—and the final resolution of Euro crisis more generally—lies
hidden in the mists of futurity. But whatever the denouement, the Court will remain a
major player. What’s more, the Court’s existing jurisprudence places limits on how German
politicians can negotiate, and what they can approve, at the European level. The irony, as
suggested earlier, is that a Court and a constitution whose major putative historical con-
tribution was to correct the course of Germany’s Sonderweg—to help return it to the com-
munity of civilized nations and Western liberal democracies—now stand in the way of
history’s greatest effort to unify the liberal democracies of Europe. The Court, to put the
point sharply, might have corrected one Sonderweg only to launch another.
Has it? I think not. This book has referred to Germany’s special path in a special sense.
From the perspective of the Basic Law and its official interpreters, that path was not aber-
rational vis-à-vis the historical trajectory of France or of Britain or even of ‘the West’—and

121 
This paragraph owes much to an exchange between the author and Dieter Grimm.
122 
See, e.g., Uwe Volkmann, ‘Der Aufstieg der Verfassung. Beobachtungen zum grundlegenden Wandel des
Verfassungsbegriffs’ in Thomas Vesting and Stefan Korioth (eds), Der Eigenwert des Verfassungsrechts (Mohr
Siebeck 2011) 23; Dieter Grimm, ‘Prinzipien statt Pragmatismus’ FAZ (6 February 2013).
304 Epilogue: The View from Europe

there are deep problems with viewing German history as delinquent in this sense—but aber-
rational vis-à-vis the Germany that might have been, the nation that might have emerged
had it turned at the right crossroads in 1848 and later on. For many decades now, the Basic
Law has been praised uniformly as ‘the best constitution that Germany has ever had’. If
constitutions are to be judged by their application in the real world, the point strikes me as
beyond dispute. What is relevant here is not only the quality of the constitution itself, but the
extent to which the broader successes of postwar German history—economic prosperity,
robust provisions of social welfare, leadership within the European community—have been
ascribed to it.123 The Basic Law is regarded not merely as the best of all historical German
constitutions, but as the foundation of the best of all possible Germanys. The Court’s deci-
sions declaring the perpetual inviolability of the Basic Law’s core ‘identity’ are an effort to
preserve the Basic Law’s—and, by derivation, the Court’s own—historical achievement.
Karlsruhe’s putative Euro-skepticism is not so much a new Sonderweg as a bid to shore up
the felicitous conclusion of the old one.
This brings us to one final irony. As noted earlier, one is tempted to suggest that the Court’s
powers have grown as its necessity has declined—that the costs of constitutional justice
might be increasing and its benefits receding. In a similar spirit, one leading German con-
stitutionalist, borrowing a phrase from the writer Hans Magnus Enzensberger, has called
on the Court to practice the ‘art of retreat’ (die Kunst des Rückzugs).124 But retreat might be
the wrong word. What the Court needs is not so much withdrawal as introspection—a kind
of institutional autobiography or, to risk an infelicity, self-historicization. As we have seen
throughout these pages, the commonest response to institutional challenges to the Court’s
authority has been to highlight the Court’s historical contributions. On the face of it, the
Court’s current predicament of proliferating standards and multiplied dogmas might seem
like a product of its failure to understand its own jurisprudence as history. The justices
continue to cite standards articulated by earlier Senates in different historical settings with
no obvious indication that the difference matters. In theory, a judgment delivered in 1952
is, together with its underlying reasoning, as valid and binding as a judgment announced
last week. In the Lisbon judgment, the Second Senate piled a mountain of prior precepts,
one atop the other, dating back to 1974 and beyond without discriminating among those
precepts or hinting at their relationship to a given historical context. The Senate then added
new precepts destined to augment the mountain in the next judgment. The problem is a gen-
eral one. The ‘standards’ sections of the Court’s decisions grow longer and longer; legislative
leeway grows tighter and tighter.
And yet, as was suggested earlier, the Court’s commitment to enduring standards both
constrains the Court’s own discretion and strengthens the public’s perception that the
Court operates above the fray of quotidian politics. It is also by articulating and elaborating
constitutional principle that the Court most effectively directs the attention of professional
politicians beyond the boundaries of the next election. It is in this capacity—guarding the
Basic Law’s successes by orienting quotidian politics to enduring principles—that the Court
fulfils its most valuable, and most valued, contemporary function.
True, some doctrinal pruning is surely in order. The Court should recognize that the
totalizing doctrinal framework of its early years—so pivotal in the liberalization of West
German society and the democratization of West German politics—might be ill-suited to

123 
See Grimm, ‘Identitӓt und Wandel’ (n 2) 614.
124 See Schӧnberger, ‘Zwischen “Demokratiedefizit” und Bundersstaatsverbot’ (n 16)  557–58; see also
Christoph Schӧnberger, ‘Anmerkungen zu Karlsruhe’ in Matthias Jestaedt and others, Das Entgrenzte
Gericht: Eine Kritische Bilanz nach 60 Jahre Bundesverfassungsgericht (Suhrkamp 2011) 64–65.
 Final Reflections 305

the needs of a mature democracy that has become the leading power of a highly integrated
Europe. This is not to suggest that all the old doctrines must go, but rather to call for a shift
in perspective—or to encourage a shift that is already underway. West Germans embraced
the Court’s immense power at a time when circumstances led them to view constitutional
justice as a precondition to democracy, rather than a restraint on it. In certain respects, it
remains such a precondition. In other respects, however, democracy demands more lati-
tude than the Court’s multitudinous canons allow. Telling the difference requires sensitiv-
ity to history as well as to dogma.
For the Federal Constitutional Court has not only made history, it has entered history.
The Court owes much of its prestige to perceptions that it operates above the fray of politics,
but it cannot pretend to operate outside the flow of time. The Court’s history is the ultimate
source of its most impressive capital. Ignoring its own historicity would imperil the Court’s
enduring relevance. It would also obscure one of the most inspiring chapters of postwar
European history. It is in the hope of giving that chapter a part of its due, and of rendering
modest assistance to its sequel, that this long book has been written.
Easter 2015
New Haven/Berlin/Provo
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 Index

Abendroth, Wolfgang,╇ 45, 130 n131, 157–58 Article 4 (religious freedom)╇ 195, 260–66
Abortion,╇ 116, 148–58, 161, 165–66, 171, 193, 204, Article 5 (artistic freedom, academic freedom,
230, 248–54, 256, 287 freedom of expression)╇ xx, 57–58, 71–72, 86,
Abstract review. See Judicial review 119–20, 124–25, 132–33, 208, 210, 257, 269–70
Academic freedom,╇131–32, 158 Article 6 (marriage and family)╇ xxi, 53,
Adenauer Coalition (1949–1957)╇ 3, 5–7, 9, 16, 237, 261
23–25, 27, 38, 41 Article 8 (freedom of assembly)╇ xx,
Adenauer, Konrad,╇ xv, xvii–xix, xxviii, xxxiii, 208–10, 258–59
1–4, 7–8, 12–30, 33, 37, 39, 41, 46–47, 49, 57, Article 10 (emergency constitution, postal
62, 63, 67–82, 110–12, 114, 134, 136, 144, 168, secrecy)╇ xx, 100–103, 124
202, 205, 220, 266 Article 12 (occupational freedom)╇ xx, 60,
Admissibility,╇ 42, 100, 145 125–26, 128, 145–46, 178, 211, 236, 256
Adorno, Theodor,╇101, 120 Article 14 (property rights)╇ 86, 135, 178, 180,
Advisory opinions╇ 236, 239, 241
from FCC to federal president,╇ 15–21 Article 16 (German citizenship,
from other federal courts to FCC,╇ 31, 34, 52 asylum)╇135, 221
Ahlers, Conrad,╇81, 86 Article 19 (legal process)╇ xxi, 102
Airborne Warning and Control Systems Article 20 (federalism, social state, popular
(AWACS)╇281 sovereignty, democracy, rule of law)╇ xx, 95,
All German Party,╇93 101–102, 168, 239, 241, 277, 295
Allemann, Fritz René,╇24 Article 21 (political parties)╇ xx–xxi, 38–40,
Altmeier, Peter,╇69–70, 74 43–44, 91–95, 168
APO. See Extra-parliamentary opposition Article 22 (federal flag)╇ 257
Arndold, Karl:╇xvi Article 23 (accession of new states to the Basic
Arndt, Adolf ,╇ 9–28, 56–57, 71–74, 77, 83–85, Law, European integration)╇ 226–28, 238 n70,
93–94, 99, 104 n275, 105, 138, 152 277, 297
Arndt, Claus,╇ 105, 198 n118 Article 24 (international organizations)╇ 145–47,
Artistic freedom,╇119–21, 257–58 203–05, 281–82
Atomic weapons,╇ xxxvi, 4, 45–48, 74, 76, 81, Article 28 (popular representation)╇ 234
85, 181, 185, 192, 202–05, 208, 211, 214, 220, Article 30 (cultural sovereignty of the
258–59, 281 states)╇69–71
Augstein, Rudolf,╇ 81–82, 85–86, 88, 96, 151, 265 Article 33 (constitutional loyalty)╇ 161
Augustinowitz, Jürgen,╇263 Article 38 (rights of Parliament and right to vote
Austria:╇ in parliamentary elections)╇ 39–40, 92, 213,
laws concerning nocturnal labour by 215, 217, 277–79, 295
women,╇255 n191 Article 44 (parliamentary committees)╇ 200–01
Catholic tradition in,╇ 260 Article 59 (rights of Parliament)╇ 203–04, 282
Austrian Constitutional Court: Article 68 (dissolution of Parliament)╇ 186–90
of 1920s,╇ xxi Article 73 (federal jurisdiction over telecommu-
abortion jurisprudence of,╇ 151 nications and the post)╇ 69–71
Article 79 (‘eternity clause’)╇ xx, 25, 101–03, 239,
Baader, Andreas,╇172 277, 295, 297
Baader-Meinhof Complex. See Terrorism Article 87 (use of force)╇ 281–84
Bahr, Egon,╇ 134, 136, 140 Article 103 (retroactivity ban)╇ 210, 215,
Balancing. See Proportionality principle 242–45, 259
Barzel, Rainer,╇ 77, 135, 137, 202 Articles 106–09 (taxation and financial equali-
Basic Law for the Federal Republic of Germany:╇ zation among states)╇ 246–48
early criticism of,╇ xxii–xxiv Article 143 (compromise on Soviet ‘Land
framing of╇ xii–xxi Reform’)╇238
lack of popular ratification,╇ xxii–xxiii, 226–28 Article 146 (adoption of new constitution)╇ xii,
(few) plebiscitary elements in,╇ xxxvii, 48, 187, 226–27, 242 n91, 295, 297
190, 192, 209, 227, 273, 285, 287 Basic Treaty between East and West Germany,╇
transitional nature of,╇ xii 134–44, 148, 151, 157, 178, 205, 220–21, 236, 280
Article 1(1) (human dignity)╇ xx, 101–102, 120, Baum, Gerhart,╇151
150, 153, 195, 295 Bavarian Party,╇74, 93
Article 1(3) (direct validity of fundamental Beck, Kurt,╇288
rights provisions)╇ xx, 52, 239 Belgian Court of Cassation,╇145
Article 2 (right to life, freedom, personality, Bell, Daniel,╇67
bodily integrity)╇ xx–xxi, 50–51, 120, 150, Benda, Ernst (First Senate and Chief Justice,
153, 195, 203 1971–1983)╇ xxviii n17, 94, 116–17, 126–27,
Article 3 (equality)╇ xii, xx–xxi, 4, 35, 51–54, 131, 136, 141, 152, 154, 156, 167, 173, 176–77,
128–29, 132, 173–74, 236, 239, 241, 254 179, 191, 194, 196–97, 264–65, 288
324 Index

Berger, Hugo (First Senate, 1959–1967) 86, 98 Churchill, Winston,  xiii, 110, 274

Berlin airlift, xv Citizenship,  135, 221, 222
Berlin Wall,  xxxvi, 80, 223, 248, 276 Civil code: effect of constitution on, 51–54,
Bickel, Alexander, 219 Civil servants: 
Binding interpretations,  142–43, 146, 158, 1951 law concerning,  2–3, 29–31
178, 205 after reunification,  234–37
Bio-politics,  148–58, 248–256 in early Federal Republic,  29–38
Bismarck, Otto von,  xxix, 42, 67, 82, 149, 263 radicals in civil service,  158–61
Blank, Theodor, 45–46 Clinton, Bill, 283
Bohley, Bärbel, 245 Co-determination,  112, 177–81, 184
Bonhoeffer, Dietrich, 6 Coercion, public demonstration
Bork, Robert, 218 as, 214–15, 258–60
Bosnia-Herzegovina: UN establishes ‘no fly zone’ Cold War  xii, 44, 46, 85, 134, 181, 185, 202, 276,
over, 281 281, 286–87
Boswell, James, 169 Communist Party of Germany (KPD)  38–45, 49, 159
Bracher, Karl Dietrich, 82, 187 Conscientious objection, 173–74, 211–12
Brandeis, Louis, 105, 155 Constitution. See Basic Law
Brandt, Willy,  xxviii, xxxiii, 67, 69, 73, 80, 85 Constitutional Patriotism, xxxvii–xxxviii,
n138, 101, 109–14, 119, 127, 134–36, 138, 198–99, 224–25, 291
141–44, 148–49, 156, 159, 166, 168, 178, 181, Constitutional referrals,  30–31, 33–35, 145, 147, 160
186–87, 197, 201–02, 209, 220, 228, 244 Constructive no-confidence vote. See
Brentano, Heinrich von, 12, 14 No-confidence vote
Brill, Hermann, 48 Court of Justice of the European Union. See
Brox, Hans (First Senate, 1967–1975) 98, European Court of Justice
150–51, 164–65 Crucifix: 
Broβ, Siegfried (Second Senate, 1998–2010) 275 in the classroom,  260–66
Bryde, Brun-Otto (First Senate, 2001–2011) 286 in the courtroom,  261
Büchner, Georg, 267 Currency: 
Bundesbank: popular regard for, 270, 287 Deutsch-Mark: xv, 4
Bundesrat:  xix, xxi, xxvi Euro: xxvi–xxvii, 276
role in approving laws passed by the Currie, David, 279
Bundestag,  173–74, 213, 250
role in approving treaties,  148, 277, 293, 297 Dahrendorf, Ralf, 127–28
role in choosing constitutional judges,  5, de Beauvoir, Simone, 160
83–84, 218 De Gaulle, Charles, xii–xiii, 68, 80
Bundestag:  xix, xxi, xxvi, 12 de Mazière, Thomas, 301
declares end of denazification,  2 Death penalty, 83, 171
popular election of,  xxiii Defamation and libel,  xxxvii, 18, 267–70
role in choosing constitutional judges,  5, Deference. See Judicial restraint
83, 218 Dehler, Thomas,  xv, xviii, 3, 5–7, 9–28, 30, 46, 51,
Bundeswehr. See Military 78, 94, 266, 272
Bündnis 90 (political group) 232, 250 Delors, Jacques, 206
BÖckenfÖrde, Ernst-Wolfgang (Second Senate, Democratization:  xiii, xxviii, xxxi–xxxiii, 9, 27,
1983–1996)  60, 166, 187, 197–98, 211, 213–14, 38, 49, 62, 112, 131, 303–04
223, 226, 251–52, 266, 273, 275, 282 n425 Denazification:  xiii–xiv, 2, 55, 119
BÖhmer, Werner (First Senate, 1965–1983) 86, Denmark: 
98–99, 154–55, 184, 194, 197–98 joins European Community,  206
BÖhrk, Gisela, 253 allows foreign residents to vote in local
BÖlling, Klaus, 170 elections, 234
BÖrner, Holger, 175, 194 voters reject, then approve, Maastricht
treaty, 276
Calhoun, John C, 279 Der Spiegel (newspaper)  xxvii, 32, 40, 45, 55, 62,
Cardozo, Benjamin, 58 72–76, 80–90, 103, 126, 133, 135, 140, 148, 151,
Carstens, Karl,  175–76, 187, 189–90 156, 165, 168, 170, 176, 179, 194, 196, 201, 204,
Carter, Jimmy, 181 214, 217–18, 226, 240, 262, 265–66, 274–75,
Casper, Gerhard, 290 280, 283, 286, 291, 298–99, 301
Census,  xxxv, 185, 192–97, 202–03, 208, di Fabio, Udo (Second Senate, 1999–2011) 275
211–12, 234 Dichgans, Hans, 104–05
Christian Democratic Union (CDU)  xvii, xxi, 3, Die Welt (newspaper)  54–55, 68, 74–75, 78, 88,
8, 20, 24–25, 46, 49, 66–67, 70, 73, 76, 78–80, 130, 143, 155, 170, 299
83–86, 91, 94–96, 98, 114, 116–17, 127, 129, Die Zeit (newspaper)  32, 40, 45, 54, 55, 74, 75, 85,
135–37, 150–51, 159, 166, 168, 171, 173–75, 89, 96, 107, 133, 157, 164, 170, 173, 179, 190,
184, 186, 192, 197, 214, 217–18, 226, 232, 234, 196, 201, 212, 222, 229, 253, 260, 283
250, 270, 275 Diemer-Nicolaus, Emmy, 116
Christian-Liberal Coalition (1982–1998) xxxiv, Dieterich, Thomas (First Senate, 1987–1994) 218
189, 192–93, 200–201, 203, 205, 211, 217, Disenchantment with politics
250, 285 (Politikverdrossenheit)  xxxv, 183–85, 209, 285
 Index 325

Dissenting opinions,  12, 26, 64, 85–90, 94, and democracy,  xxiii, xxxii–xxxiii, 107
101–103, 107, 116, 120–21, 133, 140, 146–47, and democratization of German poli-
153–56, 161, 163–64, 166, 169–70, 174, 177, tics,  xxviii, xxxi–xxxii, xxxiv, 9, 27, 38, 49,
188, 190, 198, 203–204, 207, 211, 213–14, 216, 62, 107–09, 303
222, 251–52, 261–62, 270–71 and German Sonderweg,  xxxvi–xxxvii, 228,
Dopatka, Friedrich-Wilhelm, 109 298, 303–304
‘Double-track decision’. See North Atlantic Treaty and legitimacy of parliamentary opposi-
Organization tion,  xxxii, 23, 100, 103, 183
Draghi, Mario, 299 and legitimacy,  xxxi–xxxiv, xxxvii, 1, 9, 19,
Drath, Martin (First Senate, 1951–1963) 7, 27–28, 34, 60–62, 103, 106–07, 166, 176, 183,
82–85, 114 198, 218–19, 272
Dürig, Günther,  51, 59, 101, 103 and liberalization of German state,  xxviii,
Dürr, Hermann, 156 xxxi–xxxiii, 303–04
Dutschke, Rudi, 100–101 anniversaries of,  xxvii n14, xxxviii, 79, 106,
DÖnhoff, Marion Gräfin, 264 220, 230, 248, 288–89, 298
anti-Nazi jurisprudence of,  29–38, 235
East Germany. See German Democratic Republic anti-Nazi personnel of,  6–7, 99
ECJ. See European Court of Justice as ‘aristocratic element’ within the state,  107–08
EDC. See European Defence Community as ‘guardian of the constitution’,  xxxi–xxxii,
Ehmke, Horst,  26, 86, 88, 104, 113, 141, 148, 152, 10, 20, 27–28, 44, 61, 78, 175, 180, 198, 211,
187 n16 229, 272
Ehrenberg, Herbert, 179 as ‘patriarch’ of Federal Republic,  63, 109,
Eichmann, Adolf, 64 114, 181
Einstein, Albert, 46 as check on ‘political branches’,  xxxv–xxxvi,
Elections. See Federal elections 127, 133, 170, 211, 217, 230, 303
Elfes, Wilhelm, 49–51 as engine of societal integration,  xxviii,
Ellinghaus, Wilhelm (First Senate, 1951–1955) 7 xxxiv–xxxvi, 59, 78, 107, 180–81, 225, 232–33,
Emergency Laws,  100–03, 106–107, 110, 117, 237, 241, 256
212, 214 as guarantor of the preconditions of democ-
Engels, Friedrich, 42–43 racy,  xxxi–xxxiv, 1, 27, 49, 62, 219, 305
Enzensburger, Hans Magnus, 304 as guarantor of the rule of law,  27, 62–64, 75,
Equality principle,  54, 91–92, 95, 236, 239 223, 286–87
Erhard, Ludwig, 4, 68, 98 as practitioner of Realpolitik,  164, 241, 284
Erler, Fritz, 67, 76 as source of stability,  xxv, xxxviii, 66, 75, 107,
Eschenburg, Theodor, 91–92, 117 181, 196–97, 224, 289
Esser, Josef, 157 caseload of,  xxii, xxxiv, 20 n111, 31, 106,
European Central Bank, 287, 299 118, 184
European Commission,  147 n243, 206, 276, 278, 293 centrist judges on,  107, 274, 289
European Community,  144–48, 205–07, 276–80, contrast with political parties,  xxxv, 181, 201
289–300 courthouse,  9, 42, 113–14, 131, 152, 158, 188
(lack of) fundamental rights criticism of,  xxvi, xxxiv, xxxvii, 14, 22, 33,
charter, 144–48, 205 35–37, 45, 48, 57, 61, 75–80, 89, 95–96, 99, 103,
democratic deficiencies of,  146, 230, 277, 280, 107, 133, 147, 156, 165, 176–81, 184, 191, 205,
293, 296–97 215, 240, 244–45, 247–48, 254, 260, 263–74,
FCC says may not, consistent with Basic Law, 288, 301–02
become a federal state,  295–98 exclusive constitutional jurisdiction of,  xxi, 34,
European Convention on Human Rights,  37, 60–61, 287
152 n267, 206–07, 245 fundamental rights jurisprudence of,  49–61,
European Court of Human Rights,  44, 147, 287 104, 106, 117–26, 207, 196
European Court of Justice (ECJ)  115, 144–47, independent budget for,  9–14
206–07, 287, 292–93, 300 judges as champions of popular democratic
European Defence Community (EDC)  14–28, 30, participation, xxxvii, 227
40, 61, 103, 114, 134, 136, 138, 166, 266 judges’ commentary on decisions of,  264–66
European integration,  144–48, 205–07, 276–80, jurisdiction of individual chambers within,  16,
284, 287, 289–300 20, 43, 240–41
European Parliament (EP)  147, 206, 232 n45, 291, justices’ experiences during Nazi
297, 300–01 era, 7–10, 65, 83
European Stability Mechanism (ESM) xxvi, 279 lawmaking by,  xxvi, 40, 105, 126, 130, 154–58,
European Union. See European Community 167, 176, 210, 265, 288, 304
Extra-parliamentary opposition (APO) 100, 111 mediating role of,  xxviii, xxxvi–xxxvii, 16, 230,
237, 241, 248, 254, 289
Faller, Hans Joachim (First Senate, 1971– perceived decline of  230, 287, 292, 301
1983)  117, 194, 197 popular attention to history of,  xxxiv, xxxvii, 158
FCJ. See Federal Court of Justice popular trust in,  xxii, xxvi–xxviii, xxxii, xxxiv,
Federal Constitutional Court (FCC):  26–27, 64, 90, 103, 127, 155, 157, 166, 177, 183,
and constitutional patriotism,  xxxvii–xxxviii, 185, 197, 201–202, 211, 217, 223, 225, 230, 270,
199, 224–25, 291 272, 287
326 Index

Federal Constitutional Court (FCC) (cont.): Foreign policy: 

power of,  xxi, xxvi, xxviii, 3, 62, 110, 173, 207, global engagement,  274–84
287, 303–304 Ostpolitik (Eastern policy)  112, 134–44, 178, 244
pragmatism of,  96, 133, 147, 212, 235, 241, 251 Western integration,  3, 14–28, 49, 62, 67, 205
praise of,  xxvii, xxxvii, 24, 27, 37–38, 47, 74, Forsthoff, Ernst,  35–36, 50–51, 59, 104 n276,
79–80, 82, 104, 147, 152, 169–70, 180–81, 107, 198
190–91, 196, 201, 205–207, 212, 244, 289, 294, France: 
296, 301 as founding member of European
proliferation of standards in decisions of,  xxv, Community, 144
294, 302–04 as occupying power,  xii, xxii, 65, 135
prose style in decisions of,  71, 73–74, 105, 107, constitution of Fifth Republic,  68
161, 169 historical trajectory of,  xxviii, 303
public ignorance of,  xxxiii, 49, 62 laws concerning nocturnal labour by
relations with ordinary judiciary  XXX women, 255 n191
self-understanding of,  xxxi, xxxiii, 26, 61, leery of creating West German state,  xv–xvi
106, 144 National Assembly rejects European Defence
status of vis-à-vis other constitutional Community treaties,  26
organs, 9–14 pro-choice abortion movement in,  150 n259
ultra vires review of European actions,  298 Revolution of 1789,  173
Federal Constitutional Court Act role in European Union,  276
(FCCA):  11–12, 15–16, 21–22, 30, 34, 39, 43, separation of church and state in,  273
56, 73, 90; promulgation of, 5, 10 voters narrowly approve Maastricht
Federal Court of Justice (Bundesgerichtshof ) treaty, 276–77
(FCJ)  6 n23, 54–55, 83, 85, 98, 117, 119, 184, voters reject European constitution,  292
197, 217–18, 237 n67, 275 within proposed European Defence
and trials for official East German Community, 15
crimes, 242–43 Frankfurt Constitution of 1849
conflict with FCC,  29–38 (Paulskirche) xxviii–xxix, 228
Federal elections:  Frankfurter Allgemeine Zeitung (newspaper) 
of 1949,  xvii, xx n37, 3, 38, 40 xxvii, 5, 23, 32, 55, 72, 74, 82, 88, 96, 115, 117,
of 1953,  14, 24–25, 27 123, 140–41, 152, 161 n352, 194, 196, 201, 212,
of 1957, 66–69 214, 219, 240, 263, 270
of 1961,  69, 71, 73, 79–80 Frankfurter, Felix, 105, 155
of 1965, 91, 96 Franβen, Everhardt (Second Senate,
of 1969,  96, 110–11, 114, 159 1987–1991) 218, 275
of 1972, 136, 148–50 Free democratic basic order:  xix–xx, 38–39, 43,
of 1976, 168–71, 185 159, 224, 258
of 1980,  181, 186, 189 Free Democratic Party (FDP)  xviii, 3, 7–8, 16,
of 1983,  185–94, 202, 211–12 18, 27, 46, 67, 80, 91, 94–95, 101, 110–11, 116,
of 1990, 185, 231–33 135–36, 138–39, 150, 168, 174, 184, 186, 189,
of 1994, 284–85 192, 197, 212, 217, 246, 250, 281 n418, 284–85
of 1998, 246, 285 Freedom of assembly, 208–10, 230
Federal president:  xviii–xxi, xxvi, xxxvi, 11–12, Freedom of association,  178, 258–260
15, 21 n118, 176, 194, 265, 275, 288 Freedom of conscience and expression, 256–74
election of, 68 Freedom of speech, 230
popular regard for,  202, 270 Freedom of the press,  63, 72, 86–88
power to dissolve the Bundestag,  187–91 Frei, Norbert, 28
Federal Republic of Germany:  French Constitutional Council, 152
economy of,  xxxiv, 4, 27, 57, 61, 63–64, 66–67, Frevert, Ute, 158
98–99, 113, 127, 179–80, 185, 199, 227–28, 276, FRG. See Federal Republic of Germany
281, 285–87, 291, 304 Friderichs, Jürgen, 199–200, 202
geopolitical role of,  276–84 Friedrich, Ingo, 267
no longer ‘provisional’,  221 Friesenhahn, Ernst (Second Senate, 1951–
‘success story’ of,  xxxviii, 61, 223–24, 248, 286 1963)  7, 33, 82, 94, 138, 167
Federalism:  xix, 8, 25, 73–75, 246, 261, 289 Fromme, Friedrich Karl,  96, 115, 117, 129, 141,
federalist comity,  71–72; 152, 194, 196, 240, 270
Federer, Julius (Second Senate, 1951–1967) 7, 98 Fromont, Michel, 279
First Gulf War, 267, 281 Fukuyama, Francis, 67, 286
Fischer, Joschka, 211, 285–86 Fundamental rights: 49–61, 117–26
Fischer, Karl-Hans, 271 Fundamental rights provisions in the Basic
Five per cent hurdle:  xx n37, 97, 111, 192, Law, xx–xxi
285, 298 as affirmative guarantees,  126, 129–32, 158,
in European elections,  291, 298 172, 251, 295
in first pan-German elections,  231–33 duty to protect,  138, 153–55, 172, 253
Flag desecration, 257–58 as negative protections against the
Flaubert, Gustave, 121 state,  xx–xxi, 51, 57–58, 128, 134, 161, 303
Fontane, Theodor, 121 as objective values,  xxxii, 1, 54, 58, 122, 155
 Index 327

‘radiating effect’ of (Ausstrahlungswirkung) 58, Heck, Karl (First Senate, 1954–1965) 41, 65, 98

122, 126, 128, 229 Heiland, Gerhard (First Senate,
Funding for government public relations, 167–71 1951–1961) 7, 82–83
Funke, Lisolette, 151 Heine, Heinrich, 63, 266–67
Heinemann, Gustav, 46, 77
Gaitskell, Hugh, 46 Heiβler, Rolf, 172–73
Gauweiler, Peter, 300 Heller, Hermann,  7, 84, 278
GDR. See German Democratic Republic Henneka, Anton (Second Senate, 1951–1968) 98
Geck, Wilhelm Karl, 63 Hennis, Wilhelm,  xxx, 57, 97, 104, 109–10, 116,
Geiger, Willi (Second Senate, 1951–1977)  5, 7, 9, 131, 183–84, 188, 191, 223, 233 n50
11–13, 16, 47, 57, 66, 74, 84, 86 n147, 89, 94, 99, Henschel, Johann Friedrich (First Senate,
102, 115, 139–40, 150, 158, 166–67, 169–70, 1983–1995; Vice President, 1994–1995) 197,
177 n486, 178 n490, 188, 197–98 265, 268
Geller, Gregor (Second Senate, 1963–1970) 83, Herrenchiemsee Convention of 1948: xvi
99, 102, 115, 141 Herzog, Roman (First Senate, 1983–1994;
Gender equality,  xxi, 4, 51–54, 112, 116, 157, Vice President, 1983–1987; Chief Justice,
248, 254–56 1987–1994)  152, 197, 211, 214–15, 220–21,
General freedom of activity, 49–51 227, 265
Genscher, Hans-Dietrich,  147, 169, 190, 281 Hesse, Hermann, 121
George, Stefan, 120 Hesse, Konrad (First Senate, 1975–1987) 165,
German Democratic Republic (GDR)  85, 109, 180, 209, 218, 271
112, 121, 142–43, 159, 220–23, 225–26, Heuss, Theodor,  xv, 9, 11, 15–18, 21–22,
229–31, 235–39, 242–45, 248–49, 256, 273, 27, 68, 112
275; crimes of, 242–45 Heuβner, Hermann (First Senate,
German exceptionalism, 154–55, 157 1979–1989) 197
‘German Question’, The,  xii, xviii, xxxvi, 186, Heyde, Wolfgang, 152
219–22, 223, 225, 228, 230, 231–48, 276 Higher education,  127–34, 155, 158, 166
German Reich,  xii–xiii, xviii, xxix, xxxviii, Hirsch, Martin (Second Senate, 1971–
149, 283 1981)  116–17, 125, 138, 146, 165–66, 169–70,
status after 1945,  33, 139–42, 221, 236 174, 177, 197–98, 207, 218
German states (Länder)  xv–xvi, xix–xxi, 47, Historikerstreit, 224
69–74, 76, 234, 246–47, 256, 261, Hitler, Adolf,  xii, xix, xxv, xxx, 6, 31, 34, 37, 39,
German-French Economic Agreement, 15 41–42, 56, 67, 82, 99, 110, 118 n45
Germany, occupation of  xi–xviii, 17, 26, 35, 55, 65 Hobsbawm, Eric, 149
Goethe, Johann Wolfgang von, 118, 121 Hohmann-Dennhardt, Christine (First Senate,
Golsong, Heribert, 147 1999–2011) 275
Gorbachev, Mikhail,  199, 220, 240 Holmes, Oliver Wendell, 105, 155
Grand Coalition (1966–1969)  67, 98–103, 109, Holocaust:  xiii, xxviii n18, xxix, 21, 36, 135, 224
111–13, 117, 134, 137 Homosexuality,  xiv, 51 n323, 118, 122–23, 149, 199
Graβhof, Karin (Second Senate, 1986–1998) 217, Honecker, Erich, 220–21, 275
252 n166, 275 Hoover, Herbert, xiv
Great Britain. See United Kingdom Human dignity,  xx, 25, 54, 58, 101–02, 107, 120,
Greece, joins European Community, 206 122, 124, 150, 153–54, 171, 185, 195, 200, 251,
Grimm, Dieter (First Senate, 1987–1999) 107–08, 269, 288 n460, 295,
218, 225 n17, 226, 228, 247, 264–65, 268, Häberle, Peter,  96, 103, 164, 169–70
272–73, 275, 291 HÖmig, Dieter (First Senate, 1995–2006) 275
Grosser, Alfred, 296, 298 HÖpker-Aschoff, Hermann (First Senate and
Groβfeld, Bernhard, 264 Chief Justice, 1951–1954)  xviii, 7–9, 11–14,
Gründgens, Gustaf, 118–21 17, 20–27, 31, 54, 57, 61, 65, 116–17
Guillaume, Günter, 149 HÖrster, Joachim, 263
GÖring, Hermann, 118–19
Individual complaint,  xxii, 49, 64, 106, 118, 138,
Haager, Karl (First Senate, 1962–1979)  83, 86, 146, 160, 203,
120, 154 n294 Injunctions,  14, 56, 65, 70–71, 92, 119, 122–23,
Haas, Evelyn (First Senate, 1994–2006) 261, 136, 138–40, 185, 193–94, 203, 208, 250–51,
270–71, 275 291, 299–300
Habermas, Jürgen,  xxxvii–xxxviii, 45, 48–49, 61, Inner-German border: shooting of refugees
101, 130, 160, 198–99, 224, 226–27 at, 137, 242–45
Haffner, Sebastian, xi, 63 International Covenant on Civil and Political
Hanewinckel, Christel, 253 Rights, 245
Harlan, John Marshall, 155 Ipsen, Hans-Peter, 147, 223
Harlan, Veit,  3, 55–56, 58–59, 119 Ireland 
Hartmann, Nicolai, 59 allows foreign residents to vote in local
Hassel, Kai-Uwe von, 70 elections, 234
Hasselmann, Wilfried, 131 joins European Community,  206
Hassemer, Winfried (Second Senate, 1996–2008; voters reject, then approve, Lisbon treaty,  292
Vice President, 2002–2008) 275 Italian Constitutional Court, 145
328 Index

Italy:  Lambsdorff, Otto Graf, 199–200, 202

fascism in,  xxxv, 59 Lamprecht, Rolf, 217–18, 286–87
founding member of European Economic Lassalle, Ferdinand, 1
Community, 144 Laufer, Heinz, 107–08
within proposed European Defence ‘Lebach murders’, The, 122–24
Community, 15 Lehmann, Joachim (First Senate,
1951–1963) 82–83
Jackson, Andrew, 148 Leibholz, Gerhard (Second Senate, 1951–1971) 1,
Jaeger, Renate (First Senate, 1994–2004) 273, 275 6–7, 11–13, 20, 24, 73, 78, 83, 89, 91–97
Jahn, Gerhard,  141, 150, 159, 218 n266 Leicht, Robert,  129–30, 155, 170, 223, 227, 266
Jaspers, Karl,  xiv, 91, 101 Lenin, Vladimir, 42–43
Jellinek, Walter, 12 Lenz, Otto, 39, 57
Jentsch, Hans-Joachim (Second Senate, Leusser, Carl (Second Senate, 1951–1952) 16 n81
1996–2005) 275 Lex, Ritter von, 41–42
Jepsen, Maria, 263 Life imprisonment, 171
Johnson, Samuel, 296 Limbach, Jutta (Second Senate, 1994–2002;
Jud Süss (film – The Jew Süss) 55 Vice President, 1994; Chief Justice, 1994–
Judicial appointments,  5–9, 82–85, 98–99, 2002)  265, 271–72, 274–75, 282 n425, 288
114–17, 197–99, 217–18, 274–75 Linz, Ernst, 99
Judicial restraint,  xxxiv, 4, 27, 87, 103, 105–106, Lisbon Treaty,  279, 292–98, 302, 304
140–41, 173, 175–81, 184, 191, 205, 233, 241, Loewenstein, Karl, xix, 44
273, 280, 298, 300–301 Lorenz, Peter, 159, 172
Judicial review:  Lucke, Bernd, 300
abstract review,  16–17, 20, 93, 161, 176, 229 Lüth, Erich, 54–59
American model of,  xxi
Austrian model of,  xxi Maastricht treaty,  276–80, 283, 287, 292–98
Juridification of politics,  xxiii, xxv, 264 Machiavelli, Niccolò, xviii, 78
Justice ministry,  5, 7–28, 30, 90, 152 Madison, James, xviii
Mahrenholz, Ernst Gottfied (Second
Kafka, Franz, 195 Senate, 1981–1994; Vice President,
‘Karlsruhe Republic’,  xxxviii, 60–61, 290 1987–1994)  197, 204, 211, 213–14, 216, 227,
Katz, Rudolf (Second Senate and Vice President, 252–53, 271, 275
1951–1961)  6–7, 12, 71, 82–83, 117 Maier, Hans, 133, 262–63
Katzenstein, Dietrich (First Senate, 1975– Maier, Rheinhold, xvi, 13, 65
1987)  165, 194, 218 Major, John, 277
Kauder, Volker, 300 Mann, Erika, 118
Kaul, Karl, 41–42, 84 Mann, Klaus, 118–19, 121
Kelly, Petra, 212 Mann, Thomas, 121
Kelsen, Hans, xxxi Marx, Karl, 42–43
Kennan, George, 46 Marxism, 42–43, 67
Kerscher, Helmut, 289 MatthÖfer, Hans, 200
Kiesinger, Kurt Georg,  98, 100, 111, 119 Maunz, Theodor, 36, 51
Kieβling, Günter, 199–200 Medical licensing, 125–26
Kinkel, Klaus, 281 Meier, Gert, 147
Kirchhof, Paul (Second Senate, 1987–1999) 218, Meinecke, Friedrich, 127
247, 275 Meisner, Joachim, 263
Kirchmann, Julius von, 124 Menger, Christian-Friedrich, 164
Klaas, Walter (Second Senate, 1951–1963) 82–83 Mephisto (Klaus Mann) 118–21
Klein, Hans Hugo (Second Senate, Merkel, Angela, 253
1983–1996) 197–98 Militant Democracy,  xix, xxi, 38–49, 102–03
Kleinert, Hubert, 212 Military,  15, 26, 45–46, 257, 267–70
Knapp, Ursula, 289 foreign deployment of Bundeswehr
Kohl, Helmut,  xxxv, 141, 168, 171, 175, 184–93, soldiers, 280–84
199–205, 220, 226, 234, 250, 263, 265, Ministry of justice. See Justice ministry
281, 284–85 Minority participation in
Kommers, Donald, 130 Parliament, 212–13, 215–17
Kompetenz-Kompetenz, 279, 295 Morgenthau, Henry, xiii
Krauder, Volker, 300 Moscow treaty, 134–36, 138
Kreile, Rheinhold, 37 Müller, Gebhard (First Senate and Chief Justice,
Kriele, Martin, 104, 268 1959–1971)  xxviii n17, 62, 65–66, 69, 75,
Krone, Heinrich, 73 78–79, 83–86, 89, 99, 106, 115–17, 167
Krüger, Helmut, 35–36 Müller-Meiningen, Ernst, 75, 115
Kruis, Konrad (Second Senate, 1987–1998) 216,
218, 282 n425 National Democratic Party of Germany
Kutscher, Hans (First Senate, 1955–1956; Second (NPD)  93, 97, 111, 139, 159
Senate, 1956–1970)  83, 102, 115 National hymn, profanation of, 257–58
KÖcher, Renate, 270 NATO. See North Atlantic Treaty Organization
 Index 329

Natural law,  31, 52–53, 67, 150, 239, 243–44 Popular Front for the Liberation of Palestine, 172
Nazi Era. See Third Reich Portugal: joins European Community, 206
Nellessen, Bernd, 130 Preliminary injunction. See Injunctions
Netherlands, The: allows foreign residents to vote Proebst, Hermann, 75
in local elections, 234 Property rights,  86, 135, 178, 236, 239, 241
Nevermann, Paul, 73 Proportionality principle,  xxxiii, 58–61, 87–89,
Niebler, Engelbert (Second Senate, 107, 120–26, 146, 153, 195, 201, 206, 210, 227,
1975–1987) 165 245, 251–52, 258, 269, 289
Niedermaier, Franz (First Senate, Protest movements and demonstrations, 
1983–1986) 217 xxxvi–xxxvii, 46–47, 56, 81, 98–100, 111,
Niemeyer, Gisela (First Senate, 1977–1989) 275 130–33, 150–52, 193–94, 203, 207–10
Nipperdey, Hans-Carl, 57–58 Public sphere,  xxxii, 5, 37, 55, 64, 79, 90–91, 120,
Nixon, Richard, 69, 111 224, 227, 230, 273, 278
No-confidence vote,  xix, 135, 181, 186–87, 189, 277
Non-marital children, 77, 105 Radbruch, Gustav, 149, 242–44
Nono, Luigi, 160 Ranner, Sepp, 262
North Atlantic Treaty Organization (NATO) 26, Ratzinger, Cardinal Joseph, 263
181, 185–86, 192, 202–05, 259, 281–86 Rau, Johannes, 288
‘double-track decision’,  192, 202–03, 205 Reagan, Ronald,  181, 185, 199, 220
Norway: allows foreign residents to vote in local Rechtsstaat. See Rule of law state
elections, 234 Recusal of judges,  93–95, 139–40, 151
Red Army Faction (RAF). See Terrorism
Obama, Barack, xxvi Red-Green Coalition (1998–2005) 246, 285
Occupational freedom,  xx, 60, 77, 125–29, 128, Referenda,  45–47, 65, 203, 226, 276, 292
145–46, 161 178, 211, 236, 237 n67, 256 Refugees (Heimatvertriebene)  xi, xiv, 2, 135
Oil crisis,  xxxiii, 113–14, 149 Reich president,  xviii–xx, xxx–xxxi
Oral argument,  17 n95, 20–21, 26, 41–42, 71, 86, Reichstag,  xviii, xix, 83
93–94, 131, 140, 151, 162, 168, 172, 178, 193, Reiser, Hans, 75
195, 239, 293 Reiβmüller, Johann Georg, 140–41
Organstreit proceedings,  20, 23–24, 92–93 Religious freedom,  195, 260–66
Ossietzky, Carl von, 267 negative dimension of,  261–64
Osterloh, Edo, 74 Republicans Party (Republikaner) 259
Osterloh, Lerke (Second Senate, 1998–2010) 275 Retroactivity ban (ex post facto criminal
Ostpolitik. See Foreign policy sanctions)  210, 215, 242–45, 259
Outright Monetary Transers (OMT) 299–301, 303 Reunification command’
(Wiedervereinigungsgebot)  43, 142, 239
Papier, Hans-Jürgen (First Senate, 1998–2010; Reunification treaty. See Unification treaty
Vice President, 1998–2002; Chief Justice, Revolution in values (Wertewandel) 100, 107
2002–2010)  275, 291, 299 Right to bodily integrity,  xx, 153, 203, 251
Parliament. See Bundestag Right to life,  xx, 150, 153, 155, 203, 244, 251
Parliamentary Council,  xi, xv–xxi, 3, 29, 50–51, Right to personal data self-determination,  192–97
83, 227–28, 249 Right to protest and demonstrate,  xxxvi–xxxvii,
Parliamentary dissolution,  xviii–xix, 187, 190–91 207–10
Parliamentary elections. See Federal elections Right to travel, 49–51
Parliamentary pay, 161–64 Rights of prisoners, 122–25, 289
Party finance,  90–98, 105–106, 168, 200–201, 289, Rinck, Hans-Justus (Second Senate, 1968–1986) 
Party of Democratic Socialism (PDS) 226, 98, 102, 139–40, 190, 217
231–33, 267, 285 Ritter, Gerhard, 82
Party state. See Political parties Ritterspach, Theodor (First Senate, 1951–1975) 
Pasolini, Pier Paolo, 160 86, 115, 165, 167
Paulskirche Constitution. See Frankfurt Roma, xiv
Constitution of 1949 Roosevelt, Franklin Delano, xiii
Personality rights,  xx, 39, 50, 54, 58, 105, 120, Roth, Adolf, 212
122–24, 126, 153, 192–97, 209, 289 Rottmann, Joachim (Second Senate, 1971–1983) 
Petersburg Agreement, 15, 17 116–17, 125, 138–40, 151, 169–70, 190, 197
Picht, Georg, 127–28 Rühe, Volker, 270
Pleven Plan, 14 Rule of law state (Rechtsstaat) xxix–xxxiv,
Plutarch, xviii xxxvii, 1, 22, 27, 63, 75, 82, 101–03, 139, 157,
Political parties: banning of,  xx–xxi, 38–45, 161 163, 237 n67, 241–47, 265, 273, 287
the ‘Party state’,  xxxv, 80–98, 162, 166, 183–84, 217 Rupp, Hans Georg (Second Senate, 1951–1975) 
Political satire, 258 89 n173, 102, 115, 138, 146, 161, 165, 167, 207
Politicization of law,  xxiii, 23, 44, 61, 76, 109 Rupp, Hans Heinrich, 207, 277
Politics of the past (Vergangenheitspolitik / Rupp-von Brünneck, Wiltraut (First Senate,
Vergangenheitsbewältigung)  xxx, 2, 9, 1963–1977)  83, 86, 115–17, 120–21, 133,
28–38, 63–64, 90, 99–100, 117, 119–21, 135, 154–56, 204, 275, 288
155, 225, 235, 237, 242–45 Russell, Bertrand, 46
Ponto, Jürgen, attempt to kidnap, 171 RÖhm, Ernst, 118
330 Index

Saarland treaty, 15, 139 Socialist Reich Party (SRP) 2, 38–40

Sartre, Jean-Paul, 160 Socialist Unity Party (SED)  xxxvi, 223, 225, 230
Satire. See Political satire Social-Liberal Coalition (1969–1982)  xxxiii, 62,
Scheel, Walter, 176 101, 109–14, 116–17, 134–37, 143–44, 148–49,
Scheffler, Erna (First Senate, 1951–1963) 6–7, 151–52, 168–71, 173, 175, 177, 181, 184, 186,
53–54, 82, 275 192, 201, 234,
Scheuner, Ulrich,  13 n63, 142, 148 ‘Soldiers are murderers’, 266–74
Schiffer, Eckhart, 193 Solidarity movement (Poland) 202
Schlabrendorff, Fabian von (Second Senate, 1967– Somalia: UN humanitarian mission to, 281
1977)  86, 98–99, 102, 138, 140, 165 Sommer, Bertold (Second Senate,
Schlaich, Klaus, 187 1991–2003) 252–53, 275
Schleyer, Hans-Martin, 171–73, 177 Sonderweg (special path) thesis, xxviii–xxx,
Schlink, Bernhard, 133–34, 266 xxxvi–xxxvii, 224–25, 228–29, 242, 245, 284,
Schmid, Carlo,  xi, xvii–xviii, 57, 67 298, 303–304
Schmidt, Helmut,  46, 63, 105–106, 111, 113–14, Sontheimer, Kurt, 130, 181
148–49, 151–52, 154, 168, 171–73, 175–77, 181, Southwest German states, 5, 8, 65
183, 186, 189, 201–02 Soviet ‘Land Reform’, 237–42
Schmitt, Carl,  xxii–xxiii, xxx–xxxi, 7 n29, 10, Spain: 
25–26, 32–33, 35–36, 41 n246, 44, 48–51, 55, joins European Community,  206
59–61, 68, 76, 84, 104, 109, 198, 297 allows foreign residents to vote in local
Schneider, Karl-Heinz, 162 elections, 234
Scholtissek, Herbert (First Senate, Specter, Matthew, 48
1951–1967) 86, 98 Spiegel Affair,  80–82, 85–90, 103, 137
Scholz, Rupert, 260, 263 Springer, Axel, 69
SchrÖder, Gerhard (CDU Politician, Stalin, Joseph, xiii, 42–43
1910–1989) 47, 71 Starck, Christian, 125, 253–54
SchrÖder, Gerhard (SPD Politician, Stein, Erwin (First Senate, 1951–1970)  7, 86, 115,
1944– ) 284–85, 288 117, 120, 167
Schueler, Hans,  164, 173, 177, 179–80, 201, 205, Steinberger, Helmut (Second Senate,
212, 214–15 1975–1987) 165, 218
Schunck, Egon (Second Senate, Steiner, Udo (First Senate, 1995–2007) 275
1952–1959) 65, 71, 82 Sternberger, Dolf,  xxxvii–xxxviii, 199, 224
Schuster, Hans, 24, 75 Stock, Christian, xvi
Schwarz, Hans-Peter,  66, 69–70, 276 Stoiber, Edmund, 262, 265
Schweitzer, Albert, 46 Strauβ, Franz Josef,  46, 81, 85, 88, 137–38, 143,
SchÖffer, Fritz, 70, 73 157, 178, 183, 186, 194
Schäuble, Wolfgang,  218 n266, 270, 301 StrÖbele, Hans-Christian, 280
Second Gulf War, 288 Student movement of 1968, 101, 110
SED. See Socialist Unity Party Süddeutsche Zeitung (newspaper)  xxxviii, 24, 32,
Seibert, Helga (First Senate, 1989–1999) 275 55, 74–75, 77, 84, 88, 95, 99, 115, 129, 155, 170,
Seidl, Otto (First Senate, 1986–1998; Vice 191, 193, 289
President, 1995–1998) 217, 261 Supreme Court of the United States:  xxi, xxvi,
Seifert, Karl-Heinz, 170 xxviii n17, 24, 180, 264
Seiters, Rudolf, 156 abortion jurisprudence,  152
Selbert, Elisabeth, xxi, 51 confirmation hearings,  218, 274
Seler, Ernst, 260 free speech jurisprudence of,  121, 257
Self-determination:  style of,  105
popular:  xii, xvii, xxxvii, 39, 137, 221, 227, 294, 299 treatment of precedent,  303
personal:  126, 153, 195 Sweden: allows foreign residents to vote in local
Separation of powers,  25, 39, 52, 101–02, 133, 183, elections, 234
200, 204, 213, 244, 264, 273 Swiss Ständerat, 297
Serbia and Montenegro: UN enforces embargo Switzerland: allows foreign residents to vote in
against, 281 local elections, 234
Seuffert, Walter (Second Senate and Vice Sämisch, Heinrich, 160
President, 1967–1975)  98–99, 102, 105, 116, SÖllner, Alfred (First Senate, 1987–1995) 218, 261
138, 161, 163–65
Simon, Helmut (First Senate, 1970–1987) 115, Taylor, Alan John Percival (AJP) xxix, 228
117, 120, 133, 154, 164–65, 203, 209, 215, Television and broadcasting, 68–80
217–19, 227 Terrorism,  114, 130, 159, 171–73, 181; attacks of 11
Smend, Rudolf,  xxxv, 59–60, 80, 198, 233, 241 September 2001, xxviii, 288–89
Social Democratic Party of Germany (SPD) xv, Thadden, Rudolf von, 266
xvii, xxx, 4, 6, 9–10, 12, 14–20, 23–25, 27, 29, Thatcher, Margaret, 276
41, 46–47, 56, 66–67, 70, 72–73, 76–77, 80–86, The Greens (political party)  xxxv, 183, 186,
91, 93, 95, 98, 101, 110–111, 116, 133, 135–36, 192–94, 202–205, 207–17, 232, 246, 285–86
138, 140–41, 143, 150, 152, 156, 165–66, 168, Thierse, Wolfgang, 288
175–77, 185, 187, 189–92, 197, 200, 211, 217, Third Reich:  xi, xviii, xxx, 2, 100
232, 234, 246, 284–85 legal academics’ justification of,  36–37
 Index 331

state broadcasting during,  77 Vergangenheitspolitik. See Politics of the past

German film during,  55 Vogel, Hans-Jochen,  152–53, 156, 172–73,
rhetorical invocations of,  102, 155 175–76, 180 n511, 190, 194, 288
abortion law of,  149, 155 Voβkuhle, Andreas (Second Senate, 2008– ; Vice
Federal Republic as opposition to,  245 President, 2008–2010; Chief Justice,
suppression of Republic an flag during,  257 2010– )  xxvi–xxvii, 291, 301
law of criminal coercion,  259
ban of political parties,  xv Waffenschmidt, Horst, 193
myth of legal positivism during,  53 Waffen-SS, 199
validity of legal provisions stemming from,  64 Wagner, Friedrich (Second Senate and Vice
glorification of economic President, 1961–1967)  82–83, 89 n173, 98
self-administration, 105 Wand, Rudi (Second Senate, 1970–1983) 115–17,
property expropriation during,  241 138, 140, 146, 197, 207
schoolroom crucifixes during,  260 War in Afghanistan, 284, 288
Nazi-era civil servants,  2, 29–38, 235–36 Warren, Earl, 1
continuities with in Federal Republic:  2, 41, 100 Warsaw treaty, 134–36, 138
judiciary during,  6, 7 n31, 33, 90 Weber, Werner,  xxii–xxiv, xxv, 26 n150
Thomas, Clarence, 274 Wehler, Hans-Ulrich, 272
Three per cent hurdle in European elections, 291, Wehner, Herbert,  67, 111, 113, 141, 143, 148–49, 159
298, 300–301 Wehrmacht (pre-1945 German Army)  7 n31, 45,
Tocqueville, Alexis de, xxv, 148 65, 199
Tolstoy, Leo, 121 Weigel, Theo, 262
Totalitarianism,  44, 90, 137 Weiler, Joseph, 278–79, 293
Transsexualism, 255–56 Weimar Constitution:  xi, xx, xxii, xxxi, 31 n176,
Truman, Harry S, xiv 44, 59, 153, 228, 239, 283
Tucholsky, Kurt, 266–67 presidential rule by emergency decree
‘Tyranny of values’,  59, 104, 198 under,  xviii–xx, xxxi, 100, 157, 252
Weinkauff, Hermann,  29–31, 33–36, 52, 135 n158
Unconstitutional constitutional amend- Weizsäcker, Richard von, xxxvi, 183
ments,  25, 100–103 Weng, Wolfgang, 212
Unification treaty,  235–39, 242, 249 Wesel, Uwe, 266
United Kingdom:  Wessel, Franz (First Senate, 1951–1958) 42
approves, after squabbles, Maastricht West Germany. See Federal Republic of
treaty, 276–77 Germany (FRG)
as occupying power,  xii, xiv–xv, xxii, 55, 135 Western European Union (WEU) 281
historical trajectory of,  xxviii, 303 Western integration. See Foreign policy
joins European Community,  206 Wintrich, Josef (First Senate and Chief Justice,
public television in,  68 1954–1958)  27, 41, 43, 61, 65, 117
United States of America, The:  Wohleb, Leo, 65
11 September 2001 terrorist attacks Wüppesahl, Thomas, 215–17
against, xxviii, 288–89 WÖrner, Manfred, 199–200
as ally of Federal Republic,  203–05, 288
attitudes toward data protection in,  196 Zeidler, Wolfgang (First Senate, 1967–1970;
concern with democratic legitimacy of constitu- Second Senate, 1975–1987; Vice President,
tional judicial review,  185, 219 1975–1983)  98, 115, 165–66, 188–90, 197,
judicial power in,  148 214, 217 n262, 218, 222
as occupying power,  xii–xv, 135 Zimmermann, Friedrich (Fritz)  171, 193–95, 234
separation of church and state in,  273 Zinn, Georg August,  74, 83–85, 93, 101, 175
war in Vietnam,  100, 283 Zuleeg, Manfred, 147, 280
United States Senate, 218, 297 Zweigert, Konrad (First Senate,
1951–1959) 24–25, 110
Vedder, Christoph, 207 Zweigert, Kurt (First Senate, 1951–1952) 
Vergangenheitsbewältigung. See Politics of the past 11, 16 n81