The Federal Constitutional Court: Guardian of German Democracy

• Author: Donald P. Kommers
• Published date: 01 January 2006
• Date: 01 January 2006
• DOI: http://doi.org/10.1177/0002716205283080
• Subject Matter: Articles

10.1177/0002716205283080
THE ANNALS OF THE AMERICAN ACADEMY
THE FEDERAL CONSTITUTIONAL COURT
603
January
Germany’s Federal Constitutional Court rivals the
Supreme Court of the United States in protecting po-
litical democracy. Its jurisprudence of democracy has
shaped the course and character of German politics
while upholding the rule of law and defending the con-
stitutionally prescribed “free democratic basic order.” In
furtherance of these objectives, the Constitutional
Court has invalidated regulations limiting the rights of
minor parties and constitutionalizing measures
designed to stabilize Germany’s system of parliamentary
government. These purposes have been served by con-
The Federal
stitutional decisions on voting rights, public funding of
election campaigns, dissolution of Parliament, and pro-
Constitutional portional representation, including the limiting 5 per-
cent clause. These decisions, along with a discussion of
the Hessian Election Review Case—a reminder of Bush
Court:
v. Gore—are calculated to make political representation
both responsive and responsible and to anchor the polit-
Guardian of
ical system firmly in the democratic values at the heart of
the Basic Law.
German
Keywords: Germany; party finance; democracy; rep-
resentation; voting rights; parliament
Democracy
This article focuses on the constitutionalism
of democracy in Germany. The Basic Law,
By
Germany’s constitution, defines the nature of
DONALD P. KOMMERS
this democracy in abundant detail. It provides
for its organization and procedures and imposes
substantive limits on its exercise. The constitu-
tion also empowers Germany’s Federal Consti-
tutional Court (FCC) to monitor the process of
democracy and to keep it tethered to constitu-
tional values. Over the course of the past fifty
years, the court has produced a significant body
of constitutional case law on the meaning and
Donald P. Kommers is the Joseph and Elizabeth Robbie
Professor of Political Science and concurrent professor of
law at the University of Notre Dame. He has written
widely on American and comparative constitutional law
and is the author of The Constitutional Jurisprudence
of the Federal Republic of Germany (2nd ed. 1997),
among other books, and coauthor of American Con-
stitutional Law: Essays, Cases, and Comparative Notes
(2004). His numerous awards and fellowships include an
honorary doctor of laws degree he recently received from
Germany’s Heidelberg University.
DOI: 10.1177/0002716205283080
ANNALS, AAPSS, 603, January 2006
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THE ANNALS OF THE AMERICAN ACADEMY
limits of democracy. In doing so, the FCC has played a major role in shaping the
character and course of German politics. Its decisions, and the willingness of Ger-
many’s political class to abide by its rulings, are partly responsible for transforming
what was once an underdeveloped political culture into one of the world’s most
advanced and influential parliamentary democracies, one unmistakably governed
by the rule of law.
Some preliminary remarks about the Basic Law and judicial review in Ger-
many will place the FCC’s decisional law on democracy in a more helpful context.
Accordingly, this article begins with a glance at Germany’s constitutionally pre-
scribed structure of democracy and popular sovereignty. It continues with a brief
discussion of the FCC’s jurisdiction and its role in the nation’s constitutional order
and then considers selected constitutional cases on democracy likely to interest
American readers. This short treatment is more descriptive than analytical. It is
mainly an overview of the FCC’s most important decisions on election law, political
parties, and parliamentary democracy. Along the way, and where relevant, it may
be useful to draw attention to the equivalent jurisprudence of the United States
Supreme Court.
Democracy and the Basic Law
The Basic Law of the Federal Republic of Germany, adopted in 1949 in the
aftermath of Germany’s defeat in the Second World War, has evolved into one of
the world’s most influential constitutions. This is certainly the case if influence can
be measured by the frequency with which the Basic Law’s provisions—and institu-
tions—have been copied or adopted by constitution makers around the globe
(Kokott 1999). Most influential among these provisions are those dealing with Ger-
many’s parliamentary system of government, particularly the Basic Law’s decrees
on political parties and its internal order of democracy, together with its creation of
a constitutional court authorized to review and decide controversies arising under
these provisions. The following summary is confined mainly to those clauses and
paragraphs prominently featured in the constitutional cases discussed later in this
article.
Let us begin with Article 20, paragraph 1, of the Basic Law, which defines the
Federal Republic of Germany as a “democratic and social federal state” (emphasis
added). Paragraph 2 reinforces this concept by declaring that “all state authority
emanates from the people.” The next sentence, however, emphasizes the represen-
tative character of the governing process, for the authority emanating from the
people “shall be exercised by . . . means of elections and voting and by specific legis-
lative, executive, and judicial organs,” a system of representation, as the FCC has
frequently observed, that disallows all popular initiatives, plebiscites, or referenda
at the national level.1 In addition, Article 38, paragraph 1, provides that members
of Parliament (the Bundestag) “shall be elected in general, direct, free, equal, and
secret elections” and then stipulates that they “shall be representatives of the
whole people, not bound by orders or instructions, and responsible only to their

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THE FEDERAL CONSTITUTIONAL COURT
113
conscience.” Yet the Basic Law establishes political parties as major agencies of
political representation. Their function, according to Article 21, paragraph 1, is to
“participate in the formation of the political will of the people,” for which reason
the FCC has characterized Germany as a “party state” (Parteienstaat), one in
which political parties enjoy constitutional status, allowing them to adjudicate their
rights as primary agents of electoral politics (1 BVerfGE 208, 225: 1952).2
[T]he FCC [Federal Constitutional Court]
has evolved into one of Germany’s most
important policy-making institutions, a
remarkable development in view of the
nation’s long tradition of executive
predominance in constitutional matters.
As for electoral politics, it is important to note that members of the Bundestag
are elected for four years, a constitutional mandate that imposes severe limits on
the power to vote a chancellor out of office or to dissolve Parliament before the
expiration of the normal four-year election cycle. Under the so-called “constructive
vote of no confidence,” set forth in Article 67, the Bundestag may remove a chan-
cellor in a no confidence vote only by electing his successor simultaneously by a
majority of its members. A new federal election is permitted ahead of schedule,
however, only when the chancellor himself initiates procedures specified by Arti-
cle 68. First, he must formally move for a vote of confidence in the Bundestag; sec-
ond, the Bundestag by a majority of its members must vote against him; third, the
chancellor must then petition the federal president to dissolve the Bundestag;
fourth, the president must agree to do so and arrange for new elections to be held
within sixty days. Finally, as noted later in the article, each of these procedures is
subject to review in the FCC.
The electoral system as such, which the Basic Law empowers Parliament to
determine, is another distinctive feature of German democracy. From the outset—
since 1949—the system, often called “personalized” or “modified” proportional
representation (PR) (Sartori 1997), has combined single-member districts with
PR. Federal law now provides for 598 members of the Bundestag, one half of
whom are elected in single-member districts in which a plurality of votes is suffi-
cient to win; the other half is elected by PR. Accordingly, voters receive two ballots.
On the first, they record their choice of a district representative; on the second,

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they vote for a closed list of party candidates. The outcome of the list ballot deter-
mines the total number of parliamentary seats allocated to each party. If, for exam-
ple, party A wins 38 percent of the national vote, it receives that percentage of
parliamentary seats. If the total number of district representatives equals less than
38 percent of party A’s parliamentary membership, the remaining representatives
are drawn from the list ballots until the prescribed percentage is reached. But if
party A wins no district seats, all of its members are drawn from party lists.
This system, however, is skewed in two ways. First, if a major party wins more
district seats than it would be entitled to under strict PR, it keeps these surplus or
“overhang” seats (Überhangsmandate), as they are called. Second, under the law’s
famous “barrier clause” (Sperrklausel), a party receiving less than 5 percent of the
national vote is excluded altogether from parliamentary representation unless it
wins at least three district seats, in which case it is entitled to representation pro-
portionate to its total national vote even though that vote is less than 5 percent. The
idea behind this electoral arrangement is that a party capable of winning three dis-
trict seats—a difficult achievement—has...