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The Constitutional Jurisprudence of the Federal Republic of Germany

Third edition, Revised and Expanded

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Book

Pages: 904

Illustrations: 8 tables

Published: November 2012

Authors: Donald P. Kommers, Russell A. Miller

Contributor: Ruth Bader Ginsberg

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.

Praise

"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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Author/Editor Bios Table Of Contents Rights Additional Information

Author/Editor Bios

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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.

Table Of Contents

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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

Index

Permissions 845

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Paper ISBN: 978-0-8223-5266-2 / Hardcover ISBN: 978-0-8223-5248-8 / eISBN: 978-0-8223-9538-6 / DOI: https://doi.org/10.1215/9780822395386

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