Notes
1 See the description of the German Basic Law drafting process provided by Ackerman and his interpretation on the role of the German Basic Law in his theory on constitutional dualism (Ackerman, 1992, p.
103) According to Ackerman, “the Basic Law was originally promulgated without a full-fledged mandate from the German People.” See also Klein and Sajo, 2012, p. 432: “[The German Basic Law] was thus not approved by the people.”’2 For some basic contributions to the history of the last days of the Nazi regime and the immediate aftermath of the Second World War in Germany see Beevor, 2007; Jackel, 1983; Lowe, 2013; Mac Donogh, 2009.
3 The circumstance that such elections took place only four days after the crush of the far-left Spartacus League and the murder of their leaders Rosa Luxemburg and Karl Liebknecht, might indeed raise again the question on the relationship between violence and constituent power.
4 Among the large bibliography concerning the 1949 German Grundgesetz creation we have consulted the following works: Benz, 1984; Eschenburg and Benz, 1983; Feldkamp, 1998; Friederich, 1949a and 1949b; Gimbel, 1968; Gortemaker, 1999; Hahn, 1995; Merkl, 1963; Murswiek, 1978; Mufignung, 2003; Pfetsch, 1990; Preuss, 2006-2007, pp. 474-481; Spevack, 2001; Stolleis, 2003.
5 The notion of Verfassungspatriotismus was conceived by Sternberg, 1982, but it was the author Habermas (1987) that popularized it.
6 On the democratic deficits during the creation of the 1949 German Basic Law see generally Schneider, 1992, p. 22.
7 See Control Council Law No.46 of February 25, 1947 (Abolition of Prussia). The preamble of the Control Council Law states that “The Prussian State which from early days has been a bearer of militarism and reaction in Germany has de facto ceased to exist.” See Huber, 1951, p. 648.
8 Hitler had reduced the Lander to mere administrative units, die Gaue, which were extended to the other areas annexed to the Reich from 1938 such as Austria (Dietze, 1960, p.
128; Mazower, 2008, p. 48).9 The Bavarian legislative rejected the Federal Basic Law draft in a session developed during the night between the 19th and the 20th of May, 1949, with 101 votes against the draft, 63 in favor, and nine abstentions (seven parliamentarians were absent).
10 Preamble of the German Basic Law in 1949: “Conscious of its responsibility before God and mankind, filled with the resolve to preserve its national and political unity and to serve world peace as an equal partner in a united Europe, the German people in the Lander Baden, Bavaria, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Wuerttemberg-Baden and Wuerttemberg-Hohenzollern has, by virtue of its constituent power, enacted this Basic Law of the Federal Republic of Germany to give a new order to political life for a transitional period” (emphasis added).
11 This view agrees with the statement made by Konrad Adenauer in his speech opening the work of the Parlamentarische Rat in September 1, 1948, claiming that the Parliamentary was “completely free and unbound” in its decision-making
powers (quoted by, Lange, 1993, p. 23). See also on this point Merkl, 1963, pp. 114-115 and Spevack, 2001, p. 13.
Such a view is chiefly represented by Schulz (1984). The idea of the Allied Dictate is also supported by the former liaison officer to the Parlamentarische Rat, Hans Simons, who in a lecture entitled “The Bonn Constitution and its Government” delivered at the University of Chicago in 1951 stated that: “[t]he West German constitution was developed primarily as a consequence of the conflict between the United States and the other western powers, on the one side, and the Soviet Union, on the other, and not primarily in order to please the Germans or do something good for the Germans.” See Simons, 1952, p. 114. See also Hahn, 1995, p. 7 and Spevack, 2001, p. 27.
There is some consensus, however, in appreciating that the local involvement in the 1949 German Constituent process was more intense in comparison to the Japanese constitutional drafting which may be more assimilated to the idea of an Allied dictate.
On the differences between the German and the Japanese case see Jackson, 2008, pp. 1263-1265; Otake, 2001.In a similar vein, Gimbel, 1968, p. 30; Golay, 1958, pp. 108-110; and Merkl, 1963, pp. 114-115.
This was for instance the case of Hans Nawiasky (Zacher, 1993, pp. 677-692) who was behind both the drafting of the Bayern’s Constitution and, later, the configuration of institutions such as the Constitutional Court at the federal level. On the relationship between Article 146 of the Basic Law and Article 79.3 of that text see, among many others, Heckel, 1995, pp. 531-553; Polzin, 2016, pp. 429-430. Polzin argues that the German Federal Constitutional Court’s approach is likely to hold that Article 79.3 of the Basic Law does not apply within the context of Article 146 since the latter refers to the constituent power which is not bound by the material limits contained in the eternity clause.
In a famous article written before the reunification, in 1983, Professor Michael Kloepfer while admitting the lack of democratic legitimacy of the Basic Law in its origins (given the context of occupation, the lack of citizenry involvement, or the tensions derived from the partition and the Cold War) suggested that such gaps might be covered considering the provisory character of the Grundgesetz and the pending decision of the German People decision as foreseen by Article 146 of the Basic Law. But, since the word was not given to the German People either in the terms prescribed by Article 146 of the Basic Law at the time of the reunification it may be considered, as we shall see, that the democratic shortcomings of1949 were not repaired.
Regarding the social frame of postwar Germany see Judt 2005, pp. 53-63.
“At the time when every other German institution appeared discredited by Nazi collaboration, the spiritual authority and administrative continuity of the Protestant and especially the Catholic Church accorded religious leaders enormous prestige,” see Mitchell, p.
27.In the Western zones more than 5,000 people were convicted of war crimes or crimes against humanity, of whom just under 800 were condemned to death and 486 were eventually executed (Judt, 2005, p. 53)
On the 1949 first Bundestag elections and its plebiscitarian character see Benz, 1984, pp. 251-270; Gortemaker, 1999, pp. 78-83; and Mufignung, 2003, pp. 352-353.
The German Federal Constitutional Court banned the Socialist Reich Party in 1952 (considered successor of the National Socialist German Workers' Party - NSDAP) and the Communist Party of Germany in 1956.
On the constitutional development concerning the 1990 German Unification see, among countless literature examples, Frowein, 1992; Heckel, 1995; Jaggi, 2016a and 2016b; Kilian, 2003; Klein, 1995; Lerche, 1995; Quaritsh, 1995; and Wiederin, 1992.
See Article 7 of the Treaty on the Final Settlement with Respect to Germany of September 12, 1990 between the German Federal Republic, the German Democratic Republic, the Soviet Union, the United States, the United Kingdom, and the Republic of France.
Treaty on the Unification of Germany between the Federal Republic of Germany and the German Democratic Republic of September 12, 1990 (on this treaty see Quint, 1992-1993, p. 692).
Unification Treaty Judgment BVerfG, 2 BvE 2/90 of September 18, 1990.
In the description of the neoliberal thought tenets I follow the work of Slobodian, 2018, particularly pp. 271-272. On the influence of the neoliberal ideas in the formation of the West Germany economic order under Adenauer’s government see Bank, 2013.
It may be noticed that thebelieved to be first Bilateral Investment Treaty, an instrument that confers protection to the foreign investor against the expropriations carried out by the State that hosts the investment, was signed between West German and Pakistani governments in November1959 under the auspices of the neoliberal approaches (Slobodian, 2018, pp. 142-143).
Among the different resolutions of the German Federal Constitutional Court that may be mentioned on the limits of the European Law regarding the German Constitutional Law see Solange I Judgment BVerfG, 2 BvL 52/71 of May 29, 1974; Solange II Judgment BVerfG 2 BvR 197/83 of October 22, 1986; Maastricht Judgment BVerfG, 2 BvE 2134, 2159/92 of October 12, 1993; Lisbon Judgment BVerfG, 2 BvE 2/08 of June 30, 2009, or European Central Bank OMT-Programs Judgment BVerfG 2 BvR 2728, 2729, 2730, 2731/13, 2 BvE 13/13 of June 21, 2016.
Among the scholars that have shared the vision of the German Constitutional Court see Bockenforde, 1992a, 1992b, and 1999 (whose interpretation embedded the Court’s vision when he served in it as a judge) and Kirchhof, 1992 and 2004.Among the comments of this judgment in the German doctrine see Von Bogdandy, 2010; Classen, 2009; Halberstam and Mollers, 2009; and Tomuschat, 2009.
Lisbon Judgment BVerfG, 2 BvE 2/08 of June 30, 2009 (para 399). Lisbon Judgment BVerfG, 2 BvE2/08 of June 30, 2009 (para. 228).
See, for instance, European Central Bank OMT-Programs Judgment BVerfG 2 BvR 2728, 2729, 2730, 2731/13, 2 BvE 13/13 of 21 June, 2016.
European Central Bank OMT-Programs Judgment BVerfG 2 BvR 2728, 2729, 2730, 2731/13, 2 BvE 13/13 of 21 June, 2016 (para 129-135).
Maastricht Judgment BVerfG, 2 BvE 2134, 2159/92 of October 12, 1993 (para 88). On support of the German Constitutional Court thesis see Kirchhof, 1994. Judgment BVerfG 2 BvR 859, 1651, 2006/15, 2 BvR 980/16 of May 5, 2020. Judgment BVerfG, 2 BvR 349/16 of December 16, 2016.
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