What We Teach When We Teach German Constitutional Law: An Introduction to the Collection Memorializing Donald P. Kommers

The author posits that Americans’ interest in German constitutional law can be traced to a single source. Donald Kommers (1932-2018), the political scientist and legal scholar at Notre Dame, pioneered the field of comparative constitutional law and popularized German constitutional jurisprudence in the English speaking world with his groundbreaking study of the German Federal Constitutional Court, and his seminal, English-language treatise on German constitutional law that first published in 1989

Balancing Security and Liberty in Germany

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – required the maturing German democracy to react to domestic terrorism. The third encounter – the security threat posed in the post-9/11 world by global fundamentalist terrorism – reveals Germany’s still unfolding response to global fundamentalist terrorism. Throughout the whole of its sixty-year existence, the Federal Republic of Germany has been engaged in a constitutional balancing of security and liberty in response to, or anticipation of, actual authoritarian and terrorist threats, which the United States, at least prior to 2001, had been fortunate to avoid. To scholars such as Bruce Ackerman, Germany seems a fitting candidate to teach the United States lessons from its experience with the struggle to honor constitutional commitments to liberty while maintaining national security in the face of terrorist threats. This essay answers Ackerman’s comparative law summons by providing a brief survey of the decades-long struggle of German jurisprudence to balance security and liberty. The most noteworthy feature of this jurisprudence is the prominent role played by the Bundesverfassungsgericht (Federal Constitutional Court, hereinafter referred to as Constitutional Court, or Court) and its explicit use of proportionality and balancing analyses to resolve these cases. One consequence of the latter phenomenon that is sure to interest hawks in America’s so-called “war on terror” is the Court’s acknowledgment that national security is a public, constitutional interest of the highest order. American progressives, on the other hand, will take hope from the fact that the Court’s proportionality and balancing praxis has meant that national security is regarded as only one among many competing constitutional values, including human dignity, privacy, and individual self-determination. Notwithstanding the high importance that German jurisprudence attributes to national security, the Constitutional Court never has treated it as an absolute value that must be secured at any cost. The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests. After providing a sketch of the German jurisprudence I will offer a few brief observations that, with additional research, might help explain the Court’s recent change in direction – and more fully illuminate the lessons Germany’s national security jurisprudence has to offer

Germany\u27s Basic Law and the Use of Force

The German Basic Law\u27s Regime for the use of force is evidence of and an explanation for the deep difference between Germany and the United States on security matters. It also might say something more grand about the power of law to constrain force

Germany\u27s German Constitution

Comparative lawyers, working with blunt taxonomies such as “legal families,” have been satisfied with characterizing Germany as representative or a member of the “Germanic-Roman” law tradition. The life of the Federal Republic’s post-war legal culture, however, reveals a richly more complicated story. The civil law tradition, with its emphasis on abstract conceptualism and codification, remains dominant. But it has had to accommodate a new, vigorous constitutionalism that bears many of the traits of the common law tradition, including judicial supremacy and a form of case law. This is the encounter of discrete legal traditions within a particular legal system that H. Patrick Glenn imagined. The dialogue between the civil law and common law traditions in the German legal system has produced symbiotic effects. In this article, I suggest a number of ways in which Germany’s prevailing civil law culture uniquely shapes and marks its constitutional law regime, producing Germany’s distinctly German constitutional law

Hearing on the Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability Before the Senate Committee on the Judiciary

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex post” theory also might involve the Chinese government’s more specific international obligations established by global health law, human rights law, trade law, peace and security law, and the law of development finance. Another theory is concerned with the conduct of the Chinese government before the health crisis emerged. This “ex ante” theory alleges a broad range of acts and omissions that created the conditions for the emergence and world-wide spread of the novel coronavirus. Professor Miller\u27s written responses to Committee members\u27 questions for the record following from his testimony are also downloadable from this page

To Compare or Not to Compare? Reading Justice Breyer

Justice Breyer\u27s new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer\u27s book, which is a compelling manifesto supporting comparative law and, at the same time, a frustrating example of the problems plaguing our project

Germany vs. Europe: The Principle of Democracy in German Constitutional Law and the Troubled Future of European Integration

This Article introduces the Demokratieprinzip. In Part II, I begin by more fully documenting the Euro-skeptical turn in Germany\u27s relationship with Europe, paying particular attention to the central role played by the Constitutional Court\u27s interpretation of the Demokratieprinzip. Part III, in four subparts, provides a doctrinal introduction to the principle of democracy. First, I map the principle\u27s bases in the text of the German Grundgesetz (Basic Law or Constitution). Second, I present the gloss the Constitutional Court has given the principle, making special reference to the Court\u27s recent decisions involving challenges to Germany\u27s participation in measures seeking to advance European integration. Third, I deepen our understanding of the Demokratieprinzip by considering the Court\u27s vision of parliamentary democracy, which has developed into a central component of the broader Demokratieprinzip. Finally, I rebut claims that, for all its rhetorical bombast and headline-grabbing dramatics, the Court\u27s jurisprudence relying on the Demokratieprinzip as the basis for reluctance towards Europe has not served as a practical barrier to further European integration. In Part IV, I provide greater theoretical insight into the Court\u27s interpretation of the Demokratieprinzip by demonstrating that it is a nearly complete realization of Juergen Habermas\u27s theory of discursive democracy. This highlights two important points. First, contrary to Habermas\u27s supranational vision for his discourse theory of politics, the Court insists that the principle of democracy find its expression within the framework of the German state. This might be the final attribute of the doctrine as it has been defined by the Court. Second, to the extent that the Constitutional Court\u27s interpretation of the principle of democracy now constitutes a barrier to European integration, this involves an astounding, historic, and deeply German irony because Habermas has been one of Germany\u27s most determined and visionary advocates for European supranationalism

A Pantomime of Privacy: Terrorism and Investigative Powers in German Constitutional Law

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this Article I argue that this adds up to a mere pantomime of privacy—a privacy of precise data retention and deletion timelines, for example—but not the robust “right to be let alone” that contemporary privacy advocates demand