American pressures on the German constitutional tradition: Basic rights in the west German constitution of 1949

Abstract

WTien examining the West German Basic Law (Grundgesetz) of 1949, one immediately notices the prominent position of an extensive catalogue of individual human rights. In fact, the entire first section of the Basic Law is made up of nineteen articles devoted exclusively to listing individ ual rights such as human dignity, individual freedom, equality before the law, freedom of religion, freedom of speech, freedom of assembly, the protection of the home and of private property, among several others. By contrast, in the United States constitution of 1787, a Bill of Rights was initially missing. It was only appended post facto in 10 amendments to the original text of the constitution and went into effect on December 15, 1791. The German constitutions of 1867 and 1871 did not even contain a catalogue of basic rights; even in the Weimar Republic's very progressive, democratic, and western-oriented constitution, a statement on individual and social basic rights did not occur until the second section of the docu ment. But in the Grundgesetz, the individual basic rights are unmistakably listed at the beginning, immediately after the preamble in article 1. They are thus neither absent nor do they form an afterthought; indeed, they occupy a central place. The most important first article, composed in 1949, might serve as an outline of the entire purpose of providing a section on individual rights in the Basic Law. It bears the character of a programmatic statement: Article 1