Still, Chancellor Merkel can currently enjoy a stronger position in Germany. The question now is how she can use her leverage to steer through the continuing drama of the euro crisis and guide the European Union further down the road to a stronger political union. She will need to bring her nervous fellow citizens with her on that road. Germany has not had to face the battle of national referendums, as has been the case in other countries in the EU. Yet, the decision in Karlsruhe opened the door with its ” yes, but” position to such a prospect, as the continuing process of economic integration through the ESM shows. Just like the Supreme Court in the U.S., the German Constitutional Court sees its mission as reminding how laws and policies have to fit within the framework of the Constitution. Any change outside of that framework must by necessity require a change to the constitution. That is a high hurdle.
The story of the European project is one of experiments, including both steps forward and back. It has also been a tale of creating new forms of government, administration and cooperation across national borders. It is truly a unique enterprise in human history.
As Germany and the European Union continue to evolve together into new territory, Germany’s own six plus decades of the Federal Republic’s experience in federal constitutional democracy can offer important lessons in some ways for the future contours of a more integrated Europe. The fact that so many outside of Germany were paying close attention to the Karlsruhe decision reflects that important role. Yet, for Germans the decision was important given the high level of trust in its Constitutional Court. That is indeed a sign of a healthy democracy, and it also serves as a reminder to politicians that they need to nurture and respect it if the political system is to stay stable.
Both the German and American courts have had to confront highly volatile issues and extract what the justices see as the constitutional core of the decisions. Of course, political leaders look to interpret those decisions according to their own interests. Merkel and Obama are no exceptions. Yet the important role of the highest courts is to secure and maintain their independence and integrity in the eyes of the citizens. In a period in which political discourse is increasingly marked by polarized polemics on both sides of the Atlantic, there are few institutions free of that contagion. When the courts are infected, it can be a serious problem for democracies. Nevertheless, because the political decision making machinery is increasingly hamstrung by ideological clashes, the courts wind up being asked to untangle the political knot when lawmakers come up empty.
In the US, this process of introducing the courts is complicated enough as it is. In Europe, that trend will become increasingly convoluted as it begins to move across national borders. In both cases though, the challenge will be to sustain the platform of that third crucial anchor of a democratic system of government − an independent and respected judicial branch.