[By Russell Miller, Professor of Law at Washington & Lee University, co-author of the forthcoming The Constitutional Jurisprudence of the Federal Republic of Germany (3d ed. 2012)]
On 12 September 2012 the German Federal Constitutional Court (Bundesverfassungsgericht) is set to announce its ruling on requests for temporary injunctions that would keep President Gauck from giving his assent to Parliament’s ratification of the European Stability Mechanism (ESM) Treaty. If granted, the injunction would block Germany’s essential participation in – and lavish contribution to – the ESM until the Constitutional Court has had the chance to give its full review to the merits of challenges to the constitutionality of Germany’s involvement in these rescue measures. This would mean the loss, in the near-term, of billions of Euros of planned financial assistance for Eurozone countries wobbling under the weight of their sovereign debt or the cost of keeping their increasingly infirm banking sectors solvent.
I have been repeatedly asked, often in disbelieving or hushed, conspiratorial tones, about the power and political profile of the Constitutional Court, which, as one headline puts it, “now holds the fate of Europe in its hands.” The questions are surprising coming from Americans who are so accustomed to the Supreme Court’s colossal role in our political life. But there is reason for their dismay, even if the Constitutional Court’s ESM decision does not make “the Obamacare drama look like child's play.” The image of a Court run-amok – of hyper-judicialization – is not altogether unjustified. The Constitutional Court exercises its breathtaking jurisdictional brief (including, inter alia, direct constitutional complaints, abstract judicial review, and concrete judicial review) within an exceedingly constitutionalized culture established by the post-war Basic Law (Grundgesetz) (see, for example, Articles 1(3), 20(3), 79(3) and 93(1)[4a]). And the Court has often adopted an immodest, if not activist, judicial posture, especially as it declared the controlling significance of the constitution’s elusive “objective order of values” and embraced a balancing approach to the interpretation of constitutional rights.
But, in the context of European integration, it’s a charge that does not stick. In its many decisions dealing with Germany’s relationship with the European project, the Constitutional Court has been a model of prudence and responsibility. Above all, it should be clear that the Court has had the unenviable task, in this line of cases, of reconciling two seemingly conflicting constitutional mandates. On one hand, it has had to facilitate the Basic Law’s mandate for Germany's deep commitment to Europe (Pramble; Article 23 of the Basic Law). On the other hand, it has had to reaffirm and reinforce the Basic Law’s attempt to secure for German society a bundle of fundamental values (Article 79 of the Basic Law). I am reminded of Siegfried’s noble but doomed effort to equitably divide the Nibelung hoard. The method the Court has chosen, exercised across decades now (again most notably in the Lisbon Treaty Case (2009)), has been to uphold the challenged measure of European integration while using the occasion to underscore the national constitutional values that form the limits on German integration in Europe.
That the Court often has been vilified for this difficult – perhaps even impossible – task is a shame. Its critics overlook the fact that Europe is a consistent winner at the Court. And, for a common law lawyer familiar with the dark arts of stare decisis and the interpretation and application of case law, many of the Court’s protestations about protecting German “constitutional identity” against European erosion have the feel of dicta. No doubt, these reservations make a forceful and persuasive contribution to the public discourse on Europe, but the Court’s repeated rulings favoring integration should be understood to speak more loudly. Criticism of the Court also overlooks the fact that it has not asked for this role. The Basic Law’s sweeping grant of jurisdiction to the Court, combined with German politicians’ penchant for demurring and then deferring tough choices to the Court, mean that it has been left with this difficult and charged work. Finally, criticism of the Court’s cautious European jurisprudence seems born of German elites’ wholly unreflected, Europe-at-all-costs zealotry. From this point of view, winning at the Court is not enough. The Court betrays Europe’s manifest destiny, according to its critics, with its nationally-keyed lectures and hand-wringing. But this stance puts Europe before the values the Court has asserted as the national constitutional limits on integration, including the protection of basic rights, democratic accountability, and limited government. Instead of our scorn, the Court deserves our gratitude for bearing this unwanted, irresolvable burden – and for taking it as an opportunity to remind us of the cherished but fragile democratic ideal.
On this record, what do I expect from the Court on September 12th? The Court will do the responsible thing, whether that means stemming the debt crisis engulfing Europe or reinforcing Germany’s hard-won constitutional democracy. If we are lucky, once again it will find a way to do both.