Germany’s highest court, which can declare the actions of other German national institutions unconstitutional.
After the destruction of the Nazi regime at the end of World War II, the Germans in the zones occupied by the United States, Britain, and France adopted a new constitution called the Basic Law. The Germans initially planned to use this constitution only a few years, until all of Germany was once more united. However, the Basic Law was so successful that it endured for many years, remaining after the reunification in 1989. An important feature of the Basic Law was the establishment of the German Federal Constitutional Court, which was granted the explicit power to declare unconstitutional the actions and enactments of the German national government. Although the Germans clearly modeled their Basic Law, Federal Constitutional Court, and the power of judicial review on the American model, there are significant differences that some scholars consider to be improvements on the U.S. system.
The German Federal Constitutional Court consists of sixteen judges sitting in two panels rather than the nine justices in a single panel in the United States. One panel is appointed by one of the upper houses of the German legislature and the other is appointed by the lower house. In the United States, the president nominates and the Senate confirms the Supreme Court justices; the House of Representatives has no role in appointments. German judges serve for a single twelve-year term, avoiding the lifetime tenure of American federal judges.
Still more significantly, the Federal Constitutional Court has the explicit power of judicial review written in the Basic Law, although the Supreme Court must rely on the now well-established assertion of that power in Marbury v. Madison (1803). The lack of an explicit grant of judicial review has made the Supreme Court reluctant to overturn enactments of the coordinate branches of the national government. During its short existence, the Federal Constitutional Court has overturned many more actions of its national government than the Supreme Court has in its entire history.
This has significant consequences for the global development of judicial review. Although some forms of judicial review existed before the adoption of the U.S. Constitution, the Supreme Court’s assertion of the power to declare the acts of coordinate branches of the federal government (as well as those of state and local governments) unconstitutional was a unique contribution to the idea of how countries should be governed. For the 150 years of its existence, the notion of judicial review was not well received outside the United States. Many developed European powers, which might have been expected to find it congenial, were committed to definitions of democracy coterminous with majority rule. Only when following this definition of democracy resulted in totalitarian regimes in the twentieth century did the idea of constitutional democracy and its corollary, judicial review, become popular.
In creating its constitutional court, Germany did not simply copy American practices. Although the Supreme Court’s broad jurisdiction covers cases that do not raise any constitutional questions, the Federal Constitutional Court’s limited jurisdiction allows it to concentrate on national and lander (state) government actions to ensure compatibility with the Basic Law. In line with Germany’s civil (code) law system, the Federal Constitutional Court has centralized jurisdiction to which even individual citizens can directly bring constitutional questions, while the Supreme Court sits on top of a judicial hierarchy in which any court can rule on constitutionality. If the lower court’s decision is not appealed, the judgment stands. The Supreme Court will render the final decision in the case only if the issue is appealed to it.
Both the Federal Constitutional Court and the Supreme Court render final decisions on the cases before them but with differences. The Federal Constitutional Court’s verdicts are binding generally across the nation. In the United States, the question of whether and to what extent the Court’s decision is binding on the entire nation is often in doubt. The widely understood cases and controversies standard means that Supreme Court decisions are often determined by the very specific, concrete facts of the case. Such decisions may or may not reach beyond the parties involved, depending on how analogous cases are to the particular case that was decided.
The cases and controversy rule means that the Supreme Court does not render advisory opinions nor rule on what in the German system would be referred to as abstract jurisdiction. The failure to render advisory opinions is not a necessary feature of the American legal system; many state courts do render advisory opinions. The cases and controversy rule does have advantages, however, and such a rule is typical of common-law legal systems, but it is a drawback in terms of the rationality and clarity of the legal system itself. The German system has at least the potential to produce clearer decisions.
The Federal Constitutional Court has done a better job of policing the boundaries between the central government and its subunits than the Supreme Court has done. This flows out of clearer rules in the German Basic Law than in the U.S. Constitution. There is, for example, no American provision to allow Congress to take all steps “necessary and proper” to carry into effect a list of delegated powers.
The Federal Constitutional Court is required to harmonize the Basic Law and German political institutions; thus, the American concept of a political question is alien to Germany. The Supreme Court has often used the political question doctrine to avoid ruling on issues that many legal experts view as constitutional questions. In the latter part of the twentieth century, the Supreme Court changed this by narrowing the definition of a political question and also gained the exclusive control of its own docket. Some experts believe the Supreme Court is moving closer to the model of the Federal Constitutional Court.
Of all the differences between the two courts, none is more important than the fact that the Federal Constitutional Court rigorously enforces the nondelegation of legislative power clause in the Basic Law while the Supreme Court has largely ignored its own rulings that it is improper to engage in vague delegations of constitutional power.
Cappelletti, Mario. The Judicial Process in Comparative Perspective. Oxford: Clarendon Press, 1989. Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of Germany. 2d ed. Durham, N.C.: Duke University Press, 1997. Kommers, Donald, and John Finn. American Constitutional Law: Essays, Cases and Comparative Notes. Belmont, Calif.: Wadsworth, 1998. Murphy, Walter F., and Joseph Tanenhaus. Comparative Constitutional Law: Cases and Commentaries. New York: St. Martin’s Press, 1977. Rasmussen, Joel, and Joel C. Moses. Major European Governments. 9th ed. Belmont, Calif.: Wadsworth, 1995.
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