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28.9.1951: Founding of the Federal Constitutional Court |
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The Cabinet is agreed that the verdict of the Federal Constitutional Court is wrong, ladies and gentlemen (commotion/laughter). Yes, ladies and gentlemen, you cant seriously expect me to stand up here and say that its a good verdict.
This was however in vain, as a verdict of the Federal Constitutional Court is non-appealable. All other instruments of state are bound by its decision even the government. And precisely this was the aim of the parliamentary council. When drawing up the constitution, they had attempted to draw a lesson from their brown-shirt past. During the Nazi dictatorship a law, which seems to have been correctly established as regards formalities, did away with the democracy and basic rights.
For this reason, a special constitutional court was created to prevent the democratic majority from tampering with important principles of the Constitution. On 28th September 1951, two years after the Constitution came into force, the Federal Constitutional Court Law was passed.
In that same year, the judges in Karlsruhe took up their positions. The first Court President, Herrmann Höpker-Aschoff commented on the function of the new authority,
We judges of the Federal Constitutional Court are slaves to the law and must obey it. We may not give into the temptation to want to play the legislator. We must merely ensure that the constitutional norms are also adhered to by the legislator.
And with this, Höpker-Aschoff brought up the trickiest point. Since was established, the Federal Constitutional Court has been trying hard to keep the balance between the role of the protector and creator of the law.
Even if the Court is to have no political function, its verdicts often have a considerable political impact. This becomes particularly apparent when the Court declares a law to be unconstitutional. Thus presenting the law to the judges in Karlsruhe is often the last attempt for the opposition to defeat parliamentary majority decisions.
However, the Court doesnt just deal with cases on a governmental level. The Constitution stipulates that every citizen can call upon the Court in constitutional matters and meanwhile a lot of citizens make use of this right. Whilst its over 50 years of existence saw around 500 lawsuits a year, the number has since risen to 5000. The majority of complaints, however, are rejected by a subordinate authority. This is the only way that the Karlsruhe judges can manage to deal with the majority of cases within a year.
The Federal Constitutional Court has repeatedly carried out actions of historical significance and set off sociological discussions. For example the party bans on the extreme right wing Socialist Reich Party and the extreme left German Communist Party in the 1950s. The verdict on the abortion paragraph 218 was also highly controversial in the 1970s and there were similar waves of outrage in the 1990s regarding the verdicts on the Tucholsky quote, All soldiers are murders or the dispute about the appropriateness of crucifixes in classrooms.
Jutta Limbach is the current President of the Federal Constitutional Court. She said, We have experienced protests and outrage regarding several resolutions and, in a constitutional state, which has made freedom of speech a constitutive principle of democracy, this is in theory a matter of course. A Court must also be open to criticism and must listen to what citizens have to say about its decisions.
Ernst Benda, is a former judge of the Federal Constitutional Court. He confirms that the Courts verdicts are influenced by contemporary sociological and historical views:
There are decisions that I helped to make and am no longer sure whether they were right. They seemed to be right at the time but of course my opinion changes as do the circumstances and in individual cases I would see it as maybe being the result of a lack of patience.
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