Illuminating the Arts-Policy Nexus 

By Elizabeth Pond   

Anyone who wonders how Germany's Constitutional Court could singlehandedly force Europe's most powerful woman to cool her heels vacationing in the Tyrolean Alps this summer instead of dashing off to her 21st eurocrisis summit should realize two things.   

First, America invented constitutionalism in the 18th century when it was fighting the demon of monarchy.   

Second, democratic Germany expanded on the concept in the 20th century when it was fighting to recover from the Nazi demon. "Karlsruhe," as the Constitutional Court is nicknamed after its decentralized venue, will not rush to judgment, no matter how dire the threat of imminent financial meltdown in Europe, no matter how much pressure the continent puts on Chancellor Angela Merkel to do something fast. When it agreed to review petitions to bar further German bailouts of Greece, Spain, or Italy—after last June's 20th eurocrisis summit in less than three years—Karlsruhe calmly announced that it would not render its verdict until September 12.   

Clearly the U.S. Supreme Court would never have put on its docket such an abstract and theoretical suit about future actions divorced from any concrete case of damage caused by unconstitutional legislation or a negotiated treaty. Even as politicized a Supreme Court bench as the present one would not presume to pass judgment on executive-legislative relations under the U.S. separation of powers. Nor would it have delved into the compromises and log-rolling which led to the overwhelming Bundestag approval of previous bailouts of over indebted southern members of Europe's decade-old single-currency zone.  

Yet Germany's innovations in the powers of its Constitutional Court follow directly from the original American impulse to prevent the federal president from becoming a mighty king. The populist Hitler had exploited the Weimar Republic's free elections on his rise to power; therefore the founders of the Federal Republic of Germany in 1949 were determined to guard against dangerous populist swings by establishing an institution strong enough to resist undemocratic excesses by the chancellor or parliament. Hence the provision allowing any citizen to raise constitutional challenges at Karlsruhe and the toleration of abstract theoretical appeals to the Constitutional Court.  

Indeed, in a post-Hitler nation that was gun-shy of politics, politicians repeatedly shrank from the hard clash and compromise needed to resolve what in most other democratic countries would be deemed political issues by inflating them to constitutional issues and shoving them off to Karlsruhe. The most bizarre example, perhaps, was the appeal to the Constitutional Court by the junior Liberal partners in the post-cold-war 1990s' government challenging the constitutionality of sending German soldiers abroad on NATO alliance peace-keeping missions. (The answer was yes, it was constitutional.)   

To understand the divergent paths of the U.S. Supreme Court and the German Constitutional Court, consider the reflections of two senior American scholars, one at Brown University, the other at Notre Dame. Brown's professor emeritus Gordon S. Wood, arguably the dean of historians of the United States, tracks America's extraordinary elevation of a constitution to a higher order transcending mere legislation—and the Supreme Court's corollary arrogation of the power of judicial review of legislation.  Notre Dame's professor emeritus Donald Kommers, a pioneer in exploring the political role of the German Constitutional Court, explains why and in what ways the German court is far more intrusive than its U.S. counterpart.   

The uniqueness of the American experiment with Enlightenment precepts of government was not so much that it produced the world's first written constitution, posits Pulitzer- (and Bancroft- and Emerson-) Prize winner Wood. Most radically, the new constitution of 1787 departed from its English model in no longer being just a "mixture of laws, customs, principles, and institutions," writes Wood in The Idea of America, a 2011 collection of essays summarizing his career of weighing interpretations of early American history. Instead, revolutionary Americans saw their constitution as "no part of government at all." As pamphleteer Thomas Paine put it, a constitution is "a thing antecedent to a government; and a government is only the creature of a constitution." Even a leader as revered  as first president George Washington was to be subject to the constitution.   

Thus, late 18th-century Englishmen still viewed parliament as "the supreme guarantor and interpreter of their rights against the crown." Their American cousins, by contrast, viewed the people themselves as the supreme guarantor and their constitution as "fundamental law immune from legislative encroachment" or any other governmental trespass. This conviction in turn evolved into "that remarkable practice by which judges in the ordinary courts of law have the authority to determine the constitutionality of acts of the state and federal legislatures." The notion spread globally, as other nascent democracies patterned their constitutions on the American one.  

The uniqueness of the German experiment with a far greater "scope and intensity" of court review of executive and legislative actions, Kommers points out, is shown in Karlsruhe's going beyond evaluation of the final result of legislation and treaties to monitor the process of arriving at them—a no-go zone for the U.S. Supreme Court under the American precept of separation of powers. Previous Constitutional Court rulings on rescues of debt-ridden members of the euro zone by the rich Germans and other north Europeans have required the chancellor's lawyers to show good-faith prior consultations with parliament.    A stringent interpretation of the court's admonition to the chancellor to get Bundestag consent before surrendering any more sovereign German power to the European Union could make fast-moving diplomatic counters to market plunges impossible. It could also make impossible Merkel's goal of a European fiscal union with European Commission oversight of national balanced budgets as a quid pro quo for continued bailouts of poorer euro zone members by German taxpayers.   

Already, notes Kommers, the court has warned Merkel that her "fast-track" device of setting up a "small, semi-secretive [Bundestag] committee working in close tandem with the chancellor [for prophylactic approval of negotiating positions] transforms parliament into an ancillary arm of the executive branch." And even before rendering its September 12 verdict, the court has taken the unusual step of asking Germany's president to postpone signing off on parliament's 80 percent-plus vote for ratification of treaties setting up the European Stability Mechanism that was supposed to have begun operations July 1.   

In the U.S., Kommers continues, any comparable "brazen judicial intervention" and challenge to "the president's paramount authority in making treaties would be regarded as an extraordinary act of judicial hubris."  

The court, Kommers comments, could have simply denied the requests for a temporary injunction "as a matter of judicial modesty" and tossed the essentially political question of European policy back to the chancellor and parliament. Its activist intervention has instead "opened it to the charge that it is acting undemocratically, while simultaneously claiming that it is actually defending democracy." Moreover, the court risks "exacerbating the euro zone's financial crisis."   

And yet, this summer's court-decreed suspension of euro zone diplomacy may also give Chancellor Merkel some needed breathing space to contemplate her next moves. It was while hiking in the Tyrolean hills a year ago that she concluded more robust measures would be needed after all to stem the eurocrisis and save European integration. There are hints that she is now moving toward what she has previously rejected: "mutualization" of euro zone debts in the form of permanent joint eurobonds, in imitation of Treasury Secretary Alexander Hamilton's assumption of state debts in early American history.   

It would be ironic if the summer limbo imposed on Angela Merkel by the euroskeptical Constitutional Court in fact leads to a much tighter European economic and fiscal union.  

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Elizabeth Pond is a Berlin-based journalist and the author of The Rebirth of Europe.

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