The Federal Constitutional Court: Institutionalising Judicial Review in a Semisovereign Democracy

Abstract

Among the political institutions created by the Basic Law, the Federal Constitutional Court represented a genuine institutional innovation. As one scholar has put it, it ‘came to the German legal system as a late realisation of a liberal nineteenth-century dream’.1 In the German Confederation (1815–66) the setting up of such an institution failed mainly due to the opposition from the Southern German states. While the 1849 Constitution (the so-called ‘Paulskirchenverfassung’), provided for the first genuine constitutional court in Europe,2 the political circumstances in Germany until the end of the Weimar Republic remained altogether hostile to an institutionalisation of the principles of judicial and constitutional review. During the Empire the opinion prevailed that questions regarding the political order were to be solved by political, not judicial means. Consequently, disputes between members of the federation were decided upon by the Bundesrat.3 Also the area of competence of the Weimar State Court (Staatsgerichtshof) remained rather restricted with the authority to decide on cases of judicial referral resting with the Imperial Court (Reichsgericht).4.