Constitutionalism in Germany—The First Decision of the New Constitutional Court

Abstract

1HE DECISION HANDED DOWN BY the new Gennan Constitutional Court, the Bundesverfassungsgericht, on October 23, 1951,1 exercised for the first time the power to set aside federal legislation given to that court by the Basic Law. The establishment of the Constitutional Court, provided for in the Basic Law for the Federal Republic of Germany, by the Law on the Constitutional Court of March 12, 1951,2 completed a constitutional evolution which had its beginnings in the Weimar period. The institution of judicial review has, for the first time, become a part of the scheme of German public law and is now an integral element in the constitutional structure under which the Federal Republic of Germany hopes to develop and preserve a free and democratic society. The establishment of the Constitutional Court thus marks the completion of one constitutional evolution, and its first decision the beginning of another-for the future of judicial review in Germany will depend, in a large measure, upon the skill and insight with which the Constitutional Court discharges its task. The decision of October 23, 1951 as the initial step in this second evolution is of special interest. Before discussing the decision, it is necessary to sketch, first, the constitutional evolution which the establishment of the Constitutional Court completed, and second, the political background of article 1183 of the Basic Law and of the two federal laws, en-