Review Essay: Liberalism and the Supreme Court

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court\u27s constitutional jurisprudence. It argues that the tradition\u27s political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of rational liberty, both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: majoritarian democracy, higher law traditionalism, and liberal egalitarianism

The Federal Constitutional Court in the German Political System

The Federal Constitutional Court is a major policy-making institution in Germany\u27s system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany\u27s political landscape, reaching deep into the heart of the existing state, guarding its institutions, circumscribing its powers, clarifying its goals and, in some instances, instructing politicians to adopt given courses of action. Indeed, the Court has managed to colonize spheres of law and politics that only the most ardent supporter of judicial review would have thought possible in 1951. The purpose of this essay is to explain this development, to examine the exercise of judicial review in selected areas of German politics, and to describe the techniques the Court has used to build and maintain its authority

The Jurisprudence of Free Speech in the United States and the Federal Republic of Germany

This Article compares the constitutional thought of the United States Supreme Court and the West German Federal Constitutional Court in the area of free speech. The primary focus is on cases dealing with governmental restraints on speech arising out of concern for internal security\u27 and commentary affecting the reputation of public figures. These cases reflect major lines of German and American free speech thought. The objective of this Article is to compare the concepts of free speech that have evolved in the opinions of the two tribunals and to consider the significance of the separate doctrinal paths taken by each court

The Political Impact of Constitutional Courts

Introduction to the symposium issue

Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective

In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany\u27s highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension between liberty and community in a constitutional polity. An analysis different perspectives of liberty and community in German and American constitutional law suggests a shift in the US in recent years, distinguishing it from Germany, with community becoming subordinate to liberty

The Basic Law: A Fifty Year Assessment

In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany\u27s constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in litigation by parties and politicians of all colors. It served as a rallying cry for Germany\u27s reunification and it has also been adaptable to changes in the country’s social and political life. Though the Basic Law does have imperfections, such as the relative ease with which it can be amended, it has passed the test of time and much of the success of the Federal Republic of Germany are attributable to the values, rights, and powers it has laid down