3. The German Federal Constitutional Court

• structure and jurisdiction
• 2 senates of 8 judges each
• all lawyers, at least 3 in each senate from highest nonconstitutional courts, all elected 1/2 by each house of federal parliament, 12 yr nonrenewable terms
• "abstract" (esp. art. 93(1).2) as well as "concrete" review
• arts. 93 and 100, p. 771-2, are most common jurisdictional bases
• referral from regular courts of 2 types of question (art. 100):
• review constitutionality of statute at issue in case, if regular court considers the statute to be unconstitutional
• direct applicability of a norm of international law, "if ... doubt exists"
• specific constitutional provisions calling for review, with standing rules provided by the statute, incorporated into art. 93(1).1 -- e.g.:
• const. art. 18, declaration of forfeiture of constitutional rights by abuse of freedom of expression (stat. art. 36: Bundestag, fed. gov't, state)
• const. art. 21, declaration of unconstitutionality of a political party which tends to reject the free democratic constitutional order (stat. art. 43: either house of parliament, or fed. gov't)
• jurisdiction mandatory, no discretionary power to avoid decision (rejection permissible only on basis of insubstantiality or unlikelihood of success
• judgments have force of stat., in relation to constitutionality of fed. or state stat.
• "new constitutionalism"
• unified structure of values, conflicts resolved by harmonization rather than priority
• concept of "unconstitutional amendment", art. 79
• language of amending statute must be clear, must be passed by 2/3 each house
• par. 3: "An amendment ... which affects the division of the federation into states, the essential participation of the states in the legislative process, or the principles laid down in articles 1 to 20, is impermissible."
• unconstitutionality of original Basic Law provision?
• "the primacy of rights"
• affirmative constitutional duties of protection (e.g., art. 1(1), "human dignity"; art. 2(2), "life" -- the Abortion case!)
• duties of citizens as well as rights
• particular cases to compare with U.S.:
• equality and the welfare state: numerus clausus (limited university enrollment) case
• church-state relations
• abortion
• freedom of speech: LÜTH, p. 783