A forum of constitutional deliberation? A critical analysis of the joint constitutional commission

Abstract

The Joint Constitutional Commission of the Bundestag and the Bundesrat submitted the Basic Law to a wide‐ranging review, but its recommendations are characterised by minor adaptations and a lack of innovative and forward‐looking proposals. This outcome can be explained by reference to the institutional features of the Joint Commission and, in particular, the predominance of bargaining behaviour as opposed to rational arguing in the Commission's negotiations. Instead of providing for the open deliberation of constitutional issues, the Commission largely reproduced the established political framework, and, thus, encouraged bargaining processes amongst the political elite. Althoug alternative institutional structures cannot guarantee an improvement in the quality of constitutional policy, they can at least provide opportunities for more open and rational arguing to emerge.