Judicial Review in the Federal Republic of Germany

Abstract

1. The process by which an independent court ascertains whether a statute passed by the legislature or an act of the executive branch of government is consonant with the Constitution, under German law, differs from the American connotation of judicial review chiefly in two points: (a) In the United States, the constitutional question is simply an incidental issue in a criminal case or a civil suit in a court of law. This is so, because the constitutional grant of judicial power limits the jurisdiction of the Supreme Court to cases and controversies; these terms designate claims or contentions of litigants brought before the courts for adjudication by regular proceedings.' In Germany, the situation is different. In some cases, the constitutional question, as in the United States, may be settled as an incidental point in a regular proceeding in a court, but in other cases, a special proceeding has to be instituted with the constitutional issue not as an incidental point, but as the main theme. (b) Moreover, the Federal Constitutional Court,2 which, though the highest court of the land, is not an appellate court, has the last word on the construction of the federal constitutional document. Accordingly, Germany being a federal republic, each German state has a state constitutional court to deal with questions concerning violations of the state constitution. 2. At this point, a few remarks on the general organization of the German judicial system may be in order. There are federal courts as well as state courts in Germany. They do not, however, operate independently but as parts of an integrated system. Although the German Constitution embodies a principle similar to that declared by the Tenth Amendment as to the division of authority between the national and state governments,3 subject to certain exceptions, there is no direct op-