Constitutional Orders

German Constitutionalism: The Basic Law and Constituent Power

Germany’s Basic Law, or Grundgesetz, entered into effect in 1949, as I discussed here. It’s coming-into-being, including the procedures, practices, and circumstances of its drafting, ratification, and implementation, have been critiqued as un-democratic, or not fully democratic, due to the role of Parliaments and the Council, and insufficient popular participation.

In brief the main objections are: (1) the Allied Powers mandated certain conditions and intervened in the deliberative process several times to ensure particular outcomes; (2) the Parliamentary Council convened to develop the new constitution was not a traditional mechanism of deliberation or decision-making; and (3) the Basic Law, ultimately, was approved not by popular vote, but by the Parliaments of the Länder.

This latter concern is the primary element pointed to as illustrative of the un-democratic nature of the formulation and promulgation of the Basic Law. The essence of the concern boils down to the meaning and nature of the “constituent power” of the people. What is it? Who has it? How and under what circumstances is it exercised? Are there clear and certain rules for this exercise? What is the relationship of constituent power to constitutional development and change?

In the case of the Basic Law, the Länder Parliaments were themselves democratically elected and therefore presumptively legitimate representative institutions, but they had no mandate or formal power to enact or approve a federal constitution. Does this compromise the legitimacy of the Basic Law? Was the constituent power appropriately channeled in the enactment of the Basic Law in 1949? One argument holds that removal of the mechanisms of popular approbation necessarily undermines both the Parliamentary Council as a constitutional convention, and the legitimacy of the Basic Law.

A significant counter-argument maintains that the issue is less an “either-or” situation, and more of an event-versus-process situation. This argument insists that the event of the formulation and enactment of the Basic Law was unique and “irregular,” and should not be the basis from which to determine whether or not the forging of the Basic Law was democratic, or democratic enough. Rather, this argument goes, the legitimacy of the Basic Law is process-based, that is, it derives from the general, widespread, and ongoing acceptance by the citizenry of Germany. This acceptance is demonstrated by continuing participation in elections and other vote-based processes, as well as by the invocation of the Basic Law before law courts, and the use of institutions and conformity with procedures. Constituent power, under the rubric of this argument, is ongoing and somewhat after the fact. It is a sort of building-block of a liberal legal theory of constitutionalism and legitimacy, one built on the sustained operational functions of equality, participation, impartiality, and so on, rather than on a matter of political ontology.

Especially useful to this argument has been the period following German Reunification (i.e. since October 1990), the dearth of serious calls for a new, full constitution or drastic change to the Basic Law, and the acknowledgment of the appropriateness and functionality of the Basic Law under new social and political conditions. The process of re-integrating the two Germanys under the auspices of the Basic Law proceeded relatively smoothly, so the argument goes, and this is cited as evidence for the genuine and continuing democratic legitimacy of the Basic Law.

This is one set of what we might call legalist arguments regarding constitutionalism and legitimacy in Germany. In addition to legalist arguments, however, we must also consider the historical, political, and conceptual terrains in which constituent power does or does not have salience. For example, constituent power must arguably be grounded in notions of “the sovereign people” or “popular sovereignty.” If these are not accepted and authorized political and legal premises, then does it make sense to argue for the effectiveness or otherwise of constituent power?

In the German context, for example, there is little invocation of “constituent power” or popular sovereignty in the period of the First German Reich (under Bismarck, beginning in 1871). During the Weimar Republic (1919-1933), the idea of constituent power ascended, however, especially in the writings of Carl Schmitt. The Nazis relied on populist (ethnic German) tropes (although they generally did not adopt the term constituent power), but in the wake of the regime’s atrocities, the Parliamentary Council, without relinquishing the idea of constituent power, abandoned the populist mechanisms of Weimar that had been appropriated to vile effect by the Nazis, namely the plebiscite and direct election of the President. One of the outcomes of this in Germany is the achievement of constitutional legitimacy through judicial review and the courts’ constitutional endorsement on behalf of the citizenry (see Möllers, in Loughlin and Walker below). Does legitimacy in this sense (necessarily) counter constituent power?

Relatedly, does the constituent power imply a collective or an individual popularism? If we parse the underlying meanings of contemporary usages of “constituent” and “popular” what do we find? To what extent, in any given constitutional setting, do we find the figure of constituent power in the community, the nation, the people, the culture, or other forms of collectivity? To what extent do we find it in the individual voting citizen, exercising choice? In any event, what we find differs in different historical, political, and legal circumstances, so that “constituent power” in Germany in 1949 differs from constituent power in Germany in 1919, and both carry different connotations than in the US, the UK, Italy, Nigeria, or Thailand. Constituent power, constitutionalism, democratic participation, authority, and legitimacy then, are seemingly less obviously related than it may appear. Disaggregating these elements might be a useful way forward for thinking about popular or constituent roles in constitutional orders, including the nature and place of popular action and popular competence to effect constitutional realizations. I will take up these issues in future posts.

 

References.

Werner Heun. (2011). The Constitution of Germany: A Contextual Analysis. Hart Publishing.

Martin Loughlin and Neil Walker, eds. (2007). The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford University Press.

Antonio Negri. (2007). Insurgencies: Constituent Power and the Modern State, 2d ed. University of Minnesota Press.

 

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Missing the Point?

The significance of constitutional misunderstanding bedevils the scholarship of constitutional borrowing. Andrzej Rapacynski has argued, for example, that in the late eighteenth and early nineteenth centuries constitutional activists in France misunderstood the relation between constitutionalism and sovereign power in US constitutional theory, with the result that they urged the creation of a constitutional order that enhanced the sovereign powers of th state, rather than limiting it. In the 1920s, Sun Yat Sen argued that Chinese activists, misinformed by constitutional scholars who were, themselves, mistaken in their understanding, put too much emphasis on liberty and not enough on popular sovereignty.

The problem of misinterpretation is more complicated than that simple summary of examples suggests. Rapacynski’s interpretation of the US Constitution as a document that limits the sovereignty of the state is certainly consistent with the dominant understanding of the document, but by confining his discussion of sovereignty to the State, he ignores the issue of popular sovereign power and its scope in the early national period. State sovereignty may have been bounded by the language of the constitution, but, as Larry Kramer and others have suggested, popular constitutionalism was harder to confine. Observers might easily have looked at actual constitutional practice and concluded that sovereignty as a whole was not confined in the United States constitutional order. Or they could have concluded that a better way to deal with the potentials of sovereign power was to tame it by centering it in a more powerful State and its institutions.

Likewise, Sun’s claim that liberty was never as important as popular sovereignty in the constitutional revolutions of America and Europe is at least an arguable interpretation of that history. But his argument against the Chinese activists of the 1910s and 1920s, who asserted that liberty and other rights were important elements of a constitutional order, ignored the increasing importance of rights in global constitutional discourse—an importance that was marked by the central place of rights in the Mexican Constitution of 1917 and the Weimar Constitution of 1919, and the recognition of the rights of workers and peasants in the Russian Constitution of 1918. If Sun was right about the constitutional past, he misunderstood the constitutional present.

The question for constitutional scholarship is whether it makes sense to talk of constitutional mistakes in this absolute way. As I suggest above, constitutional history calls for a more nuanced view: Most constitutional theories have several plausible interpretations at any given point in time, most constitutional moments give rise to competing understandings of their meaning, often constitutional theories or doctrines evolve over time and, in the process, take on new meanings. In the more than slightly polyphonic space of functioning constitutional orders, the idea that there is a right way to understand a constitutional concept is hard to sustain.

At the same time, constitutional borrowing, which by necessity is a process of translation on several levels, suggests that “mistakes” are inevitable. Transferring ideas of sovereignty and sovereign power from one polity to another requires modification to reflect the reality on the ground and the previous practices that the borrowers are trying to correct and preserve. Likewise, transferring constitutional ideas from one era to another requires another sort of translation, which takes into account the way concepts have evolved over time in response to changing circumstances and further debate.   

ERD

 Sources:

Andrzej Rapaczynski, “Popular Sovereignty and the Concept of Representation: The Relevance of American Constitutionalism in Eastern Europe,” International Journal of Sociology 26 (1996-1997): 7, 9.

Sun Yat Sen, 三民主义 (March and April lectures, 1924), at http://zh.wikisource.org/w/index.php?title=%E4%B8%89%E6%B0%91%E4%B8%BB%E7%BE%A9&variant=zh-tw.

 

German Constitutional History: The Genesis of the Basic Law

The Basic Law, or Grundgesetz, is the Constitution of Germany (Bundesrepublik). It was created during the Allied Occupation of Germany following the second World War, and was designed to correct the defects of the Weimar Constitution and the tragedy and total defeat of the Third Reich. The constitutional moment in 1948 was “irregular,” for several reasons: (1) the Basic Law was drafted under Allied occupation and with Allied powers’ influence; (2) it was drafted on the heels of the failure of the Weimar Republic and catastrophic actions of the National Socialists;  and (3) it was drafted under the circumstances of the territorial division of Germany that resulted from the conclusion of the second World War. Until German Reunification in 1990, the Basic Law applied only to West Germany.

This last aspect is, in fact, why the document is called the Basic Law, and not a Constitution (Verfassung). Because of the territorial division between East and West, and the possibility of future reunification, the drafters of the Basic Law explicitly considered it to be provisional, and not a full constitutional document. There are provisions in the Basic Law for the promulgation of a full Constitution, but for various reasons, since Reunification in 1990, there has been no movement toward drafting and implementing a new and full Constitution.  

Following the end of the war, the internal borders of Germany were redrawn by the Allied powers so that no more than 30% of either territory or population was included in any one state. The objective was to preclude any single state becoming dominant as Prussia had been for several centuries. There were eleven states (Länder) in West Germany. In each Land, following the redrawing of boundaries, democratic constitutions were drafted and ratified by popular assemblies, and each state held elections for their Parliaments.

Drafting a new constitution was undertaken by the Parliamentary Council (Parliamentarischer Rat). The re-established state Parliaments elected delegates to the Council, and the final document was ratified not by the people, but by the Parliaments of the Länder. The Prime Minister of the Lander convened a committee of experts in 1948, which met to deliberate and prepare a preliminary draft. In August of 1948, the Parliaments elected the delegates to the Council, which consisted of 70 members (including delegates form Berlin), and the Council undertook the task of debating, discussing, and arriving at compromises for the draft. The Council met in Bonn, the future capital of West Germany, and elected Konrad Adenauer as its President. The work of the Council was followed closely by the Allies, who intervened a number of times to ensure particular outcomes, especially in terms of democracy, protections of fundamental rights, strong federalism, and counterbalances of decentralized taxation and financial administration.

The Council approved the draft Basic Law on May 8, 1949, a date which coincided with the date of Germany’s surrender four years previously. Ten of the eleven Lander ratified the draft; only Bavaria did not approve it. It entered into force on May 23, 1949. Elections were held for the Federal Parliament (Bundestag) on August 14, 1949, and its first session took place on September 7, and the following week the Members elected Konrad Adenauer as the first Chancellor.

The coming-into-being of the Basic Law, and the procedures, practices, and circumstances of its drafting, ratification, and implementation have been critiqued as un-democratic, or not fully democratic, due to the role of Parliaments and the Council, and insufficient popular participation. I will address these concerns and others in my next entry.

As a final remark, let me note that Germany is a federal republic, one of several federalist states in Europe. The Allied powers insisted on a strong Federal state in Germany, as a bulwark against Soviet agitation and encroachment. Federalism has a strong history n German political and social history, however, and so Allied (especially American) demands regarding federalism should not be seen as merely a foreign imposition.  In future posts, I will address the history of German federalism, the basic principles of modern German constitutionalism, the organization and structure of the modern German state, among other topics. I will also discuss historical state forms and modes of constitutionalism in Germany, including the Prussian, Imperial, and Weimar periods.

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Constitutional Orders and Institutional Innovation: The Supreme Court of the United Kingdom

One of the recent architectonic changes in the British constitutional order has been the removal of the Law Lords from Parliament, and the creation of the Supreme Court of the United Kingdom, which assumed the judicial functions exercised by the Law Lords. The Court was established by Part 3 of the Constitutional Reform Act 2005. It is the final court of appeal for all civil cases in the UK, and all criminal cases in England, Wales, and Northern Ireland. (Scotland’s High Court of Justiciary is the highest appellate court for criminal cases in Scotland.) The Supreme Court is housed in Middlesex Guildhall, and entered into operation in October of 2009.

Prior to the Constitutional Reform Act 2005 there were a number of concerns regarding the operation of the office of the Lord Chancellor, and the Lords of Appeal in Ordinary, commonly referred to as the Law Lords, as the court of final appeal.

One main concern was the office and role of the Lord Chancellor, which, prior to 2005, exercised legislative, executive, and judicial function. The lack of appropriate separation of powers in this office was an ongoing and recurrent concern, focused mainly on the possible exercise of undue influence on the appointment of judges and financing of the courts. In addition, there were suggestions that the judiciary’s ability to effectively scrutinize government action was compromised by the institutional roles played by the Lord Chancellor.

A second main concern was the position of the Law Lords within the House of Lords. This institutional role blurred the lines of separation between the judiciary and legislature. The Constitutional Reform Act achieved a nearly complete separation between the Lord Chancellor and the judiciary, and a complete separation between the Upper House of Parliament and the judiciary. The Act also created conditions for improved transparency.

The foundational rationale for this new institutionalization was to enhance the UK’s functioning as a democratic society which functions under the rule of law. With the separations effected by the Constitutional Reform Act, judicial independence, judicial accountability, and judicial scrutiny of the executive are arguably improved, which leads, presumptively, to better protections of individual rights and liberties, and a less fraught relation of citizens to the state. (For a closely argued statement to this effect, see the lecture delivered by Lord Phillips, President of the Supreme Court, here).

The UK’s Supreme Court is also responsible for giving effect to relevant European Union law, including the rights contained in the European Convention on Human Rights (and the implementation of these in UK domestic law as the Human Rights Act of 1998). The Supreme Court must also interpret domestic law in conformity with existing EU and other multinational obligations.

There is growing anxiety among judges and others in the UK, however, that the practical achievements of the rule of law are compromised by issues arising out of the Constitutional Reform Act and other legislation, and out of the conditions of ordinary politics. In the current moment, the UK Government is implementing austerity measures in an effort to recover from the economic crises of 2007-2009. Since the Constitutional Reform Act, successive Governments have insisted that the civil justice system, including the Supreme Court, should pay for itself.

This has developed into two major concerns: the suggestion that the civil courts should pay for their own costs via fee impositions; and the proposal, in a Bill currently before the Commons, that legal aid funding should be slashed (see the Bill here and a response from a member of the Supreme Court here). Both moves are dangerously close to the disenfranchisement from civil justice of the poorest and most vulnerable in society, which arguably undermines the efficacy of the rule of law.

Thus, the creation of the Supreme Court, the separation of powers achieved by the Constitutional Reform Act of 2005, and the improved mechanisms of judicial independence and accountability do not necessarily carry the weight of improving and maintaining the rule of law. We must look beyond the institutional devices, to the interpersonal relations between offices and institutions that play out in the political structuring of debates, negotiations, and decisions regarding the financing of courts and appointing of judges, among other concerns, in order to more fully understand constitutional actions and their implications.

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