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  • Foreword to the Third Edition / Justice Ruth Bader Ginsburg xi

    Preface to the Third Edition xiii

    Acknowledgments xvii

    Note on Translations and Judicial Opinions xxi

    Abbreviations xxv

    Part I. German Constitutionalism

    1. The Federal Constitutional Court 3

    Origin 4

    Jurisdiction 10

    Institution 17

    Process 25

    Judicial Review in Operation 33

    Conclusion 40

    2. Basic Law and Its Interpretation 42

    New Constitutionalism of the Basic Law 43

    Nature of the Polity 48

    Theories of the Constitution 55

    Theory of Basic Rights 59

    Interpretive Modes and Techniques 62

    Sources of Interpretation 70

    Conclusion 75

    Part II. Constitutional Structures and Relationships

    3. Federalism 79

    Territorial Organization 80

    Doctrine of Federal Comity 90

    Apportionment and Distribution of Revenue 95

    Local Self-Government 104

    Bundesrat, Reformstau, and Modern Federalism 110

    Division of Legislative Power 120

    Cooperative Federalism 138

    Implementation of Federal Law 141

    Conclusion 150

    4. Separation of Powers 152

    Executive-Legislative Relations 153

    Judicial versus Legislative Authority 164

    Delegation of Legislative Power 175

    Foreign and Military Affairs 189

    Conclusion 214

    5. Political Representation and Democracy 216

    Parliamentary Democracy 216

    Elections and Voting 238

    Party State and Political Spending 269

    Militant Democracy 285

    Conclusion 300

    6. Jurisprudence of the Open State 302

    Basic Law and International Law 302

    Germany's Constitutional Openness and International Tribunals 319

    Basic Law and European Law 325

    Conclusion 352

    Part III. Basic Rights and Liberties

    7. Human Dignity, Personal Liberty, and Equality 355

    Dignity of Persons 356

    Right to Life 373

    Right to Personality 399

    Equality 419

    Conclusion 439

    8. Freedom of Speech, Press, and Art 441

    A Jurisprudence of Balancing 442

    Reputational Interests and Offensive Speech 460

    Resocialization, Privacy, Truth-Telling, and Assembly 479

    Freedom of the Press and Broadcasting 502

    Artistic and Academic Freedom 519

    Conclusion 536

    9. Religion, Conscience, and Family Rights 538

    Free Exercise of Religion 539

    Minority Religions 553

    Religious Practices and Symbols in Public Schools 566

    Taxation, Autonomy, and Religious Societies 590

    Marriage and Family Rights 600

    Conclusion 620

    10. Economic Liberties and the Social State 622

    Nature of the Economic System 623

    Right to Property 630

    Occupational and Associational Rights 659

    Reunification and Economic Liberties 685

    Conclusion 711

    Appendix A: Chronological Chart of the Justices 713

    Appendix B: Biographical Sketches of Presidents and Vice Presidents 717

    Notes 725

    Tables of Cases 833


    Permissions 845

  • Ruth Bader Ginsberg

  • "In the endeavor to gain knowledge from the problems confronted and resolutions reached by our counterparts abroad, the work of Donald P. Kommers, now joined by Russell A. Miller, is a rich resource. Offering far more than excellent English-language translations of the decisions of a renowned tribunal, Professors Kommers and Miller supply incisive analyses and commentary. I am pleased to herald the publication of this third edition of a masterful text. . . . Brought right up to the moment . . . The Constitutional Jurisprudence of the Federal Republic of Germany is an engaging, enlightening, indispensable source for those seeking to learn from the text and context of German constitutional jurisprudence." — From the foreword by Ruth Bader Ginsburg, Associate Justice, the Supreme Court of the United States

    "The constitutional law of Germany—and the judgments of the German Federal Constitutional Court—are central for anyone interested in comparative constitutional law. This book is an excellent introduction to German constitutional thinking. It makes one better understand one's own constitution and its problems. I have relied heavily on the previous editions. This latest one is essential." — Aharon Barak, former President, the Supreme Court of Israel

    "This is the single most important book in English on one of the world's most important courts. More than a hornbook because it includes smartly edited cases, and more than a casebook because it adds outstanding institutional, historical, and doctrinal context, this volume provides a first-rate introduction to the German Federal Constitutional Court, which has been among the most influential courts in the world in creating global constitutional law. With this volume, English-speaking readers can see why." — Kim Lane Scheppele, Director of the Program in Law and Public Affairs and Laurance S. Rockefeller Professor of Sociology and International Affairs at Princeton University

    "With new coauthor Russell A. Miller, Donald P. Kommers delivers a thoroughly updated and, in some respects, reorganized work, which gives needed attention both to constitutional amendments (as in the chapter on federalism) and to conceptual developments in the Constitutional Court's jurisprudence. The authors' evident familiarity with German and U.S. constitutional law deepens the book's comparative perspective. This has been and will remain an indispensable resource for scholars and students who want to develop a deep understanding of Germany's constitutional system." — Vicki C. Jackson, author of, Constitutional Engagement in a Transnational Era

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  • Description

    First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller's discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions.

    Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany's Basic Law and, therefore, the systematic approach reflected in the most-respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from Reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany's counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.

    About The Author(s)

    Donald P. Kommers is Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law Emeritus at the University of Notre Dame.

    Russell A. Miller is a Professor at Washington and Lee University School of Law.

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