Comparative Constitutional Law Class 9 September The German Federal Constitutional Court

More on Amendment Article 79 Very easy to amend the Basic Law; done many times

Basic Rights BASIC RIGHTS- Grundrechte What are basic rights and where are they found in the Basic Law?

Basic Rights BASIC RIGHTS- Grundrechte What are basic rights and where are they found in the Basic Law? They are rules protecting against unlawful acts or omissions by the state. They ensure that human rights are respected. The main basic rights are in Arts 1-19GG though there are also some grundrechtsgleiche Rechte, e.g. Art. 38, 33 (political participation), 103, 104 GG (rights of fair trial, due process)

GG: Language of Duties as well as rights Duties on state Duties on individuals

Limitations Can the Basic Rights Be Restricted or Are They Absolute? See Art. 19(1) which requires that any restrictions be pursuant to a generally applicable law, and also provides judicial recourse for violations of the Basic Law. Some specific limitations in rights e.g. 8(1) right to assemble ‘peacefully’ Art 18 provides that certain basic rights can be abused and forfeited (Art. 5(1), and (3), Art. 8, Art. 9, Art. 10, Art. 14, Art. 16(a)) if the Federal Constitutional Court declares the forefeiture temporary or permanent. Principle of proportionality

Bundestag: As GG Highest constitutional organ in Germany and one of 2 chambers of Parliament. Legislative body directly elected by the German people 614 Representatives now: they serve a 4 year term The electoral system is a combination of proportional representation and direct election – this mixed system was designed to ensure that there are not too many minority parties in the Bundestag, because situation this had assisted in the rise of National Socialism in the Weimar Republic. Mixed member proportional system: Electors cast 2 votes: one for member from his/her constituency, and the second for the Land list (majority/proportional voting) 299 constituency 299 party 16 overhang Elects Chancellor (Arts. 63, 67 and 68 GG)

Bundestag: last election Sept 18, 2005

Upper House of German Parliament: Bundesrat As GG What does it do? Compare it to the Australian, Canadian, and United States Senates

GG: Language of Duties as well as rights Duties on state Duties on individuals

Bundesverfassungsgericht (Federal Constitutional Court) What is its sole task? (Kelsen model) Where is it located? Located in Karlsruhe, purposely apart from other organs of government

Bundesverfassungsgericht (Federal Constitutional Court) Located in Karlsruhe, purposely apart from other organs of government – SW Germany, near French border, in Baden-Württenberg (Stuttgart is capital city)

Types of dispute What types of matters can the FCC hear? Compare to the U.S. and Canada

Types of disputes (A. 93) Constitutional Complaints Abstract Judicial Review (Land govt, federal govt, or 1/3 Bundestag members) Concrete Judicial Review (lower courts) Federal sep. of powers or State/Federal Dispute Federal Election Scrutiny Impeachment Prohibitions on political parties (e.g. KPD (1956))

Workload Compare to U.S., Canada,

Decisions Explain the role of the rapporteur (Berichterstatter) What is a votum? What is the role of law clerks (wissenschaftliche Mitarbeiter) in the FCC? How are final opinions created? Are there dissents?

Jurisdiction Compulsory: contrast with U.S., Canada,

Judges A 94 How many judges on the FCC? How are judges chosen? How long does a FCC judge serve for? What qualifications and experience are required/typical? Compare to U.S., Canada

First Senate: FCC

First Senate Hans-Jürgen Papier (President of Court, Chairman of Senate) 2/1998-2/ year term b CDU/CSU Michael Eichberger 4/2006-4/2018 (12 year term) b CDU/CSU Wilhelm Schluckebier 10/ /2017 (retirement) b Ferdinand Kirchhof 10/ /2018 (retirement) b CDU/CSU Christine Hohmann-Dennhardt 1/1999-1/2011 (12 year term) b SPD Brun-Otto Bryde 1/2001-1/2011 (retirement) b Alliance90/The Greens Reinhard Gaier 11/ /2016 (retirement) b SPD Johannes Masing 4/2008-4/2020 (12 year term) b SPD

Second Senate

Andreas Voßkuhle Vice-President of the Court, Chairman of the Senate) 5/ /2020 (12-year term) b SPD Siegfried Broß 9/ /2010 (12-year term) b SPD Lerke Osterloh 10/ /2010 (12-year term) b SPD Udo Di Fabio 12/ /2011 (12-year term) b CDU/CSU Rudolf Mellinghof 1/ /2013 (12-year term) b (CDU/CSU) Gertrude Lubbe-Wolff 4/ /2014 (12-year term) b SPD Michael Gerhardt 7/ /2015 (12-year term) b SPD Herbert Landau 10/ /2016 (retirement) b CDU/CSU

Which U.S. Supreme Court justices would be eligible to sit on the FCC?

Justice Alito Justice Roberts