Constitutional Review and the German Bailout Controversy : (Page 3)

July 18, 2012

Yet, as a matter of judicial modesty, many Germans feel that the FCC should have stayed its hand in the currency crisis. As in so many other areas of German public life, the Court is behaving like a co-legislator or a co-executive, along with parliament, in the making of European policy. There is little doubt that the FCC could have avoided the donnybrook over its European role by simply denying the temporary injunction, thus creating space for a political resolution. However much the FCC tries to label the issue before it as legal or constitutional, it has not escaped the suspicion that it is in fact behaving politically. Not only that, but the FCC has opened itself to the charge that it is acting undemocratically, while simultaneously claiming that it is actually defending democracy.

Upset by the Court’s intervention in the euro dispute, some members of the Bundestag have even suggested amending the Basic Law to withdraw from the FCC all jurisdiction over European affairs. But if this were to happen, the Court would reach into its tool box and declare the constitutional amendment itself unconstitutional for abridging, under the terms of Article 79 (3), the unamendable principles of democracy, separation of powers, and the constitutional state. This too would be unacceptable to Americans, for they would have a hard time believing that any amendment to the Constitution under the terms of Article V could be declared unconstitutional. They would regard the very idea as a contradiction in terms. But this is the measure of the power that German constitution-makers conferred on the FCC when they enacted the Basic Law in 1949. In the understanding of the German public mind, the power given to the Court was thought to reflect the supremacy of the constitution and the rule of law in all public affairs.

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