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.
