Whose Values?

The American and German acts of constitution forming each represented an attempt to create a new state and a new constitutional identity from a tabula rasa moment. These parallels, though, do not disguise the significant differences between these acts of constitution making. Justice Oliver Holmes observed in his famous dissent in Lochner v New York that a constitution is “made for people of fundamentally different views.”193

Although undoubtedly true of the United States it seems less true of Germany, for reasons I will explain presently. Holmes might well have said ‘peoples’ for in the American colonies, while there was certainly a common culture, Americans had distinct state, regional and local identities. Sharp differences existed within states and between the propertied and moneyed elites of the northern states and the farm and plantation owners of the south. Thus, even by the time of the Civil War, almost 75 years after the Constitution was established, Robert E Lee and Jefferson Davis still considered themselves citizens of their states first, of the South second and of the United States last.194

Patrick Henry’s indignation during the Virginia Ratifying Convention at the words in the Constitution’s preamble illustrated the fragmented reality of the American colonies.195 The United States as a nation did not exist and would not be forged without the struggle and shedding of blood that Justice Holmes referred to.196 It is often only when various groups and interests clash over their differing conceptions of the constitutional narrative that the Supreme Court’s interpretations became orientation points for the developing nation. Sometimes, however, the divisions in constitutional

192 _{Collings, p. xxxvi. See infra note 218}

193 _{Lochner v New York 198 U.S. 45 (1905), p. 76.}

194 _{Walter F. Murphy, Constitutional Democracy : Creating and Maintaining a Just Political Order} (Baltimore, MD: Johns Hopkins University Press, 2007). p.351.

195 _{“What right had they to say, ‘We, the people’? […] Who authorized them to speak the language of,} ‘We, the people’, instead of, ‘We, the states’? States are the characteristics and the soul of a

confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” Patrick Henry, 'Patrick Henry, Virginia Ratifying

Convention, 4 June 1788', (Chicago: The University of Chicago, 2000), pp. 21-22). 196 _{State of Missouri v Holland, 252 U.S. 416 (1920). See infra note 254.}

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meaning between the social practices that are permitted in the civic space and what the state is prepared to accept as law become too wide. In the United States, the Civil War was the end result. As Robert Dahl observed

Given the extreme polarisation in interests, values, and ways of life between the citizens of the slave states and those of the free states, I cannot imagine any democratic constitution under which the two sections could have continued to coexist peacefully in one country.197

After the defeat of the South and the passage of the Reconstruction Amendments, the law of the United States and the constitutional interpretation of the North regarding the abhorrence of slavery won out. But the Union won by force; as Böckenförde would put it, it had to sacrifice its liberalness and resort to war to restore a constitutional interpretation that would have to be recognised as law in the South. However, recognition of law did not mean that the South had accepted the values and meaning embodied in that law.

Under normal circumstances in a country as large as the U.S., differences in constitutional meaning between the interpretation of a national majority and that of local majorities need not result in bloodshed. Justice Stephen Breyer noted recently that the Constitution

leaves vast space in between the boundaries, for people themselves through the ballot box to decide what cities, towns, states, what kind of a nation they want. That is what [it] foresees.198

The Court’s role, Breyer added, is more akin to “the boundary commission” of the Constitution, policing only those difficult questions on the edges of the document which people can and will differ on. This view of a constitution establishing a civic space where political and social life can occur―and the role of any court in policing that space―is very important and will be returned to in this chapter and later ones.

The President of the Bundesverfassungsgericht, Andreas Voßkuhle, said in a 2013 interview that the role of a court―particularly in the German sense―is defining parameters within which politics can unfold.199 Breyer’s and Voßkuhle’s remarks may sound alike, but they are essentially describing two different universes, one broadly

197 _{Dahl, p. 95.}

198

'Justice Stephen Breyer', in Charlie Rose. 199 _{See infra note 723.}

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conditioned by liberty and one by dignity. More significantly, Breyer is describing, however decorously, a civic space where individuals volunteer, engage in their communities, and live their lives within those spaces. Voßkuhle, though, is describing a purely political space where representative democracy can be allowed to play out; but only if it respects the higher law norms and fundamental rights of the Constitution. This difference sets up the fundamental problem which will be engaged with in this and later chapters, and which Jefferson, Tocqueville, Arendt and Böckenförde have wrestled with: the balance between the state giving citizens the discretion to live their lives free from its interference, while depending on those same citizens to preserve the state, and those very freedoms that the state’s existence guarantees.

If the U.S. Constitution was a framework for argument200 among people of different views, Germany’s Basic Law (‘Grundgesetz’) was an unambiguous normative attempt to create a liberal democratic constitutional order based on fundamental rights that the state would be duty bound to protect. Although more homogenous than eighteenth century America, Germany, also contained people of different views, some of whom were on the march in opposition to the new FRG and its values.201 But whereas the U.S. Constitution had to be ambiguous enough to draw together those different societal threads within a workable framework of governance, the Basic Law was a clear normative constitution which did not seek to reconcile the values of disparate parts of society, but to inculcate its fundamental values in society. While the liberal values of the Basic Law represented some of the fruits of the country’s two previous liberal constitutions—the Frankfurt Constitution of 1849, which survived less than a day, and the Weimar Constitution of 1919 which lasted fourteen years—they were not rooted deeply in German society.202

The development of the Basic Law’s objective value order by the Bundesverfassungsgericht and its implications for stability and renewal will be assessed in Chapter 6. It is also important to recognise that Germany’s post-war constitutional institutions were widely seen as just one part of the equation. Finding a value system or sense of identification that would resonate with the Germany people in 1949 and

200 _{This view of the U.S. Constitution as a framework for argument is also addressed by Ellis. See Joseph} J Ellis, 'The Argument', in American Creation: Triumphs and Tragedies at the Founding of the Republic, (Random House LLC, 2007), pp. 87-126.

201 _{See infra note 496.} 202

Bismarck’s constitution of 1871, while notionally establishing a parliamentary democracy was merely an appendage to the Prussian military state.

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reinforce rather than undermine the values of the Basic Law was every bit as much of a challenge. One widely discussed idea in Germany for decades has been constitutional patriotism (Verfassungspatriotismus), which has been developed in the very different work of Jürgen Habermas and Dolf Sternberger203. For Sternberger, who had experienced the fall of Weimar, the Verfassungspatriotismus was one of ‘militancy’ and making the state and its institutions strong enough against its enemies, while for Habermas it was about ‘memory’ and recognising that after the Holocaust the only possible national identity for Germans was one based on a shared public adherence to democratic rights and values. Both of these ideas―of militant democracy and resistant institutions, and public adherence to democratic values―are embodied in important ways within the Basic Law.

Germany’s founding fathers, like America’s, recognised the tentative nature of their creation. Given the fate of the country’s previous attempts at constitution making, the new constitutional document was deliberately not called a constitution (‘Verfassung’), but the Basic Law or (‘Grundgesetz’204). This paradoxically had the effect of lowering expectations even as the lofty principles in the Basic Law’s opening articles, and its resistant constitutional structure, sought to ensure that it did not meet the same fate as Weimar. In a country which, despite the Nazi period, still had a profound respect for the law205 and the notion of the Rechtsstaat, characterising the Basic Law as ‘fundamental law’ was perhaps wise. Moreover, the designation Grundgesetz indicated that the Basic Law was intended to be a temporary and transitional document, which according to the terms of its preamble would apply during a “transitional period” (‘Übergangszeit’) until the “entire German people” could “in free self-determination, complete the unity and freedom of Germany”.206

The opportunity to create a new Constitution for a re-unified Germany came in 1991, but it was not one that most Germans, at least in West Germany, had any wish to take advantage of.