Privacy and Security

June 17, 2015

The AGI Foreign & Domestic Policy Program; Goethe-Institut Washington; and the Robert H. Smith Center for the Constitution at James Madison’s Montpelier are pleased to invite you to the following seminar:

On June 17, 2015, AGI hosted Professor Russell Miller, co-author of The Constitutional Jurisprudence of the Federal Republic of Germany (2012), for a discussion on “The Constitutional Framework for German Democracy.” This event was made possible by the Goethe Institut’s Mapping Democracy Series, the German Academic Exchange Service, the German Embassy’s Cultural Division, and the Robert Bosch Foundation. The discussion focused on the German Constitutional Court, the role of the definition of democracy, and the Court’s “Yes, but…” attitude toward European integration.

The discussion focused on two overarching ideas. First, Professor Miller discussed German law. More specifically, he referenced articles in Germany’s Basic Law (from the Constitutional Court) of 1949 that define democracy and discussed cases taken on by the Constitutional Court that exemplify how the Court interprets democracy in the domestic judicial sphere. Second, Professor Miller discussed how the Constitutional Court addresses issues of European integration and its attempt to fill what many view as the democratic void in the EU.

Professor Miller opened the lecture with an introduction to German Basic Law and the Constitutional Court. Germany intensely protects its domestic democratic processes. Articles 20 and 38 of Basic Law define democracy as structural (via legal limitations), with guaranteed electoral expression, and direct elections through secret ballots.

Democracy includes breadth, allowing political parties across the political spectrum to freely organize. This safeguards debate and protects minority parties. Democracy’s breadth has it limits, however. Germany believes some “undemocratic” limitations necessarily conserve democracy. Examples of constraints include a ban on “antidemocratic” political parties and a 5 percent threshold for minority parties to hold seats in the federal government.

Beyond the Basic Law, the Constitutional Court has also grappled with democratic issues. Professor Miller used the Hartz IV case to explain the importance of democratic processes to the Constitutional Court. Hartz IV was a portion of Gerhard Schröder’s welfare reforms that combined unemployment and welfare payments into one €350 sum. The Constitutional Court, however, rejected this decision. While it supported the idea of welfare reform and affirmed its commitment to human dignity and the Sozialstadt, the Court believed that the Bundestag did not do its due diligence and arrived at an arbitrary €350 amount. The Hartz IV case is an example of when the Court ruled an action taken by the Bundestag was not inherently unconstitutional, but the means by which the government arrived at its conclusion was arbitrary, rather than democratic.

Professor Miller then broadened his lens and examined German law and the Constitutional Court within the European framework. Since the inception of the notion of a European community, Germany has been an engine for European integration. Written into its Basic Law, integration was also an important symbol for reconciliation. Article 23 states “with a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union…” Both German law and the Constitutional Court have a responsibility to Germans and the broader European community.

Occasionally, as Professor Miller explained, pro-integration and pro-German democratic notions ignite much debate in the Constitutional Court. Generally, the Court has responded to this tension with what Professor Miller calls “Yes more Europe, but…” decisions. “Yes, we should bail out Greece, but…” or “Yes, we support the Lisbon Treaty, but within constitutional limitations.”

Furthermore, issues in the Constitutional Court arise when Germany transfers what it views as essential public functions from the Bundestag to the EU, as many believe it is incompatible with Germany’s notion of democracy. The EU’s recent drastic steps to become a more integrated body often deny member states’ sovereignty or internal democratic processes. German citizens believe that many of Germany’s powers cannot, and should not, be deferred or outsourced to Europe. Many believe that domestic courts, therefore, can alleviate the EU’s “democratic deficit.” In Germany, for example, any citizen is allowed to bring an issue with the EU to the Constitutional Court.

As time passes, the line between European and German precedence becomes clearer. In the meantime, according to Professor Miller, if Germans can have faith in the German Constitutional Court to protect their rights, they will have greater faith in the European system.

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