Rethinking the rise of the German constitutional court : from anti-Nazism to value formalism

Abstract

The German Constitutional Court, we often hear, draws its considerable strength from the reaction to the German Nazi past: Because the Nazis abused rights and had been elected by the people, the argument runs, it was necessary to create a strong Court to guard these rights in the future. This contribution proceeds in two steps. First, it sets out to show that this “Nazi thesis” provides an inadequate explanation for the Court’s authority and rise. The German framers did not envisage a strong, rights-protecting, counter-majoritarian court. Even where the Nazi thesis does find some application during the transitional 1950s and 1960s, its role is more complicated and limited than its proponents assume. In the second part, this paper offers an alternative way of making sense of the German Court’s rise to power. Against a comparative background, I argue that the German Court’s success is best understood as a combination between a (weak) version of transformative constitutionalism and a hierarchical legal culture with a strong emphasis on a scientific conception of law and expertise. The Court could tap into the resources of legitimacy available in this culture by formalizing its early transformative decisions, producing its own particular style, ‘Value Formalism’. Value Formalism, however, comes with costs, most notably an interpretive monopoly of lawyers shutting out other voices from constitutional interpretation.