FifthAcquisitions in the modern sense have been around since the American and French Revolutions, that is, more than two hundred years ago. With the exception of the first US Supreme Court case, the constitutional judiciary did not begin its general triumph until the second half of the twentieth century. The model of the continental European alternative, where the court is institutionally independent and, unlike the United States, is also not the highest court of appeal and at the same time, the Constitutional Court of Austria, which, with the significant participation of Hans Kelsen, in Federal Constitutional Law in 1920 under the title ” Constitutional guarantees and administration.
The creation of the German Federal Constitutional Court followed this model. The historical difference between constitutions and constitutional jurisdiction already indicates that constitutional jurisdiction is not a mandatory constitutional institution. In particular, if constitutional courts are given the power to reject laws that are passed democratically, this raises the question of why a majority of a small group of judges with fairly weak democratic legitimacy would decide on a majority decision in a much larger Parliament. They must be elected directly by the people. It would not be possible to accuse her of targeted constitutional ignorance in all areas. On the other hand, the supreme wisdom of the judge is certainly excluded as an explanation. This “anti-majority difficulty” has been the subject of endless debate in the United States for decades.
The question of the relationship between democracy and constitutional jurisdiction is one of the main themes of the articles, most of which have arisen from the past two decades and compiled in this volume by former federal constitutional judge Dieter Grimm. It turns against the common notion of an uncomplicated, harmonious relationship between the two. Instead, the democratic paradox of the constitutional courts is clearly discussed.
There is no competence to regulate the social life of the individual
According to Grimm, there is neither an intrinsic contradiction nor a necessary, even tangential, relationship between democracy and constitutional jurisdiction. The advantage of constitutional competence lies in the fact that any professional and at the same time relatively indifferent view of the constitution, devoid of political aims and purposes, manages to explain it in a rather objective, methodologically guaranteed way – the viewpoint of political actors, who are often guided by interests, do not adopt In the same way. The defect in general seems to be the undesirable legalization of political discourse, the legalization of politics, which is not infrequently brought about by politics itself.
Above all, Grimm attempts to use functional arguments to show that there can be a balance – always uneasy – between the advantages and disadvantages of constitutional jurisdiction. The judicial form of the procedure plays an important role: the court adheres to the standards, acts only when applied, and there is no jurisdiction to regulate the social life of the individual. Of course, these are not entirely safe remedies against active justice, but they can have a curbing and delaying effect beyond mere appeal in the sense of “judicial restraint”. Informal scrutiny by the public and academia should not be underestimated.
Regardless of the approval of the masses
The second topic concerns the relationship between law and politics, more precisely: the question of whether constitutional courts are more political or legal institutions. Grimm differentiates: He frankly recognizes the subject of the decision, that is, the constitution, which is of a political nature because it regulates and limits political rule. Resolutions, particularly the rejection of parliamentary laws, inevitably have a political impact. In this regard, the following applies: No constitutional jurisdiction is apolitical.
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